UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAVIN KYLE LATIMORE,

Plaintiff, Case No. 14-13997

v. Hon. Gerald E. Rosen

ROBERT J. PICKELL, et al.,

Defendants.

____________________________________/

OPINION AND ORDER REGARDING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on December 27, 2016 

PRESENT: Honorable Gerald E. Rosen

United States District Judge

I. INTRODUCTION

Plaintiff Javin Kyle Latimore commenced this action in this Court on

October 16, 2014, asserting federal claims of excessive force under 42 U.S.C. §

1983 and a variety of state-law claims against Genesee County Sheriff Robert J.

Pickell, Genesee County Undersheriff James Gage, and fifteen other law

enforcement officers employed by the Genesee County Sheriff Department.

1

1Prior to the close of discovery, Plaintiff’s claims against Undersheriff Gage were

dismissed by stipulation of the parties. In addition, Plaintiff has agreed to the dismissal of

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 1 of 37 Pg ID 478
Plaintiff’s claims arise from a March 26, 2013 incident in which he was subjected

to various forms of force at the City of Flint lockup and the Genesee County Jail

following his arrest for trespass when he allegedly refused the order of two nonparty City of Flint police officers to leave a Flint restaurant. This Court’s subject

matter jurisdiction rests upon Plaintiff’s assertion of claims arising under federal

law. See 28 U.S.C. § 1331.

 Through the present motion, the Defendant law enforcement officers seek

an award of summary judgment in their favor on each of Plaintiff’s remaining

federal and state-law claims. In support of this motion, Defendants argue (i) that

the claims asserted against the Defendant officers in their official capacity are

inadequately pled and lack evidentiary support, (ii) that Plaintiff has failed to

produce evidence in support of his claims against Sheriff Pickell, (iii) that the

Defendant law enforcement officers did not use excessive force in their

interactions with Plaintiff or, at a minimum, are entitled to qualified immunity

from liability for Plaintiff’s claims of excessive force, and (iv) that Plaintiff’s

state-law claims of assault and battery are defeated by his active resistance to the

his claims against three other Defendant officers: Genesee County Deputies Radmilla

Hovey and Timothy Lynch and Sergeant Pete Stocchi. Finally, Plaintiff has

acknowledged that his state-law claims of false arrest, false imprisonment, and civil

conspiracy are subject to dismissal, leaving assault and battery as the only theories of

recovery that Plaintiff is still pursuing under state law.

2

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 2 of 37 Pg ID 479
Defendant officers’ verbal commands and lawful efforts to restrain him.

Defendants’ motion has been fully briefed by the parties. Having reviewed

the parties’ briefs and their accompanying exhibits, as well as the remainder of the

record, the Court finds that the relevant allegations, facts, and legal issues are

sufficiently presented in these written submissions, and that oral argument would

not aid the decisional process. Accordingly, the Court will decide Defendants’

motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern

District of Michigan. This opinion and order sets forth the Court’s rulings on this

motion.

II. FACTUAL BACKGROUND

The facts underlying the March 26, 2013 incident giving rise to this suit are

the subject of considerable disagreement and dispute among the parties. In

accordance with the present, summary judgment posture of this case, the following

account is based on a view of the record in a light most favorable to Plaintiff as the

non-moving party.

On March 26, 2013, Plaintiff Javin Latimore — who was then twenty-three

years old — visited three bars and restaurants in downtown Flint, Michigan,

consuming a few glasses of wine over the course of the evening. Plaintiff’s last

stop that night was the Blackstone restaurant, where he sat at the bar and asked for

3

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 3 of 37 Pg ID 480
a drink menu. Before he could order a drink, however, the bartender told Plaintiff

to “leave or he was going to call the police,” without giving any reason.

(Defendants’ Motion, Ex. C, Plaintiff’s Dep. at 37.)

2

 The bartender then made a

phone call, and two City of Flint police officers arrived at the scene. (See id. at

37-38.)

Upon the arrival of the Flint police, Plaintiff approached one of the officers

and insisted that he had done nothing wrong. (See id. at 39.) The officer

responded that “you can’t come into people’s establishments if you’re unwanted,”

and Plaintiff was placed under arrest. (Id. at 40.) The police report for this

incident states that Plaintiff was ordered three times to leave the bar and refused

each of these orders, (see Flint Police Report at 2), but Plaintiff denies that he was

given any such warning before being arrested, (see Plaintiff’s Dep. at 39-40). The

police report further indicates that Plaintiff was arrested for trespassing, (see Flint

Police Report at 2), but Plaintiff testified that he was not told why he was being

arrested, (see Plaintiff’s Dep. at 41).

Following his arrest, Plaintiff was placed in handcuffs and transported to the

2According to a report prepared by a non-party City of Flint police officer, the

bartender stated that after he served Plaintiff a drink, Plaintiff “became verbally abusive”

and began yelling and cursing at the bartender. (Defendants’ Motion, Ex. D, Flint Police

Report at 2.) Plaintiff, however, has denied that he verbally abused or cursed at the

bartender. (See Plaintiff’s Dep. at 36-37.) 

4

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 4 of 37 Pg ID 481
City of Flint lockup, which was run by the Genesee County Sheriff Department. 

Upon his arrival at the lockup, Plaintiff was led to an intake area and told to sit on

a bench. (Plaintiff’s Response, Ex. A, Plaintiff’s Dep. at 52-53.)3

 According to

Plaintiff, as he moved to one end of the bench and attempted to speak with a

Caucasian female police officer who was standing to his left,

4

 this officer “pinned

[him] onto the bench” and made some sort of physical contact with him, and two

additional unnamed officers joined her in pinning Plaintiff to the bench,

5

pushing

his body “really hard” in the process. (Plaintiff’s Dep. at 53-56.)6

Plaintiff next was picked up off the bench and taken to an isolation cell to

3This portion of Plaintiff’s encounter with the Defendant law enforcement officers

was captured on video, and Defendants have produced a copy of this video as an exhibit

to their motion. (See Defendants’ Motion, Ex. E.) As discussed below, the parties have

different views as to the events depicted in this video recording.

4Plaintiff testified that upon reviewing police reports and “putting things together,”

he determined that this officer was Deputy Collette Newman. (Id. at 53-54.)

5

It appears from the record that these two other officers were Deputy Jason

Thomas and Deputy Demetta Reeves.

6Deputy Newman testified at her deposition that she pushed Plaintiff back onto the

bench after he tried to stand up and disregarded commands to stay seated. (See Plaintiff’s

Response, Ex. B, Newman Dep at 11, 17; see also Defendants’ Motion, Ex. A, Newman

Suppl. Report.) Plaintiff testified, in contrast, that he did not try to stand up or lift himself

off the bench, and he also denied that he became combative as he sat on the bench. 

(Plaintiff’s Dep. at 55-57.)

5

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 5 of 37 Pg ID 482
be searched.

7

 According to reports prepared by Sergeant Pam Sanchez, Deputy

Reeves, Deputy Newman, Deputy Thomas, and Deputy Brett Beckley, Plaintiff

was combative, uncooperative, and repeatedly disregarded verbal commands as

the officers attempted to search him, and he kicked Sergeant Sanchez in the face at

one point during this encounter. (See Defendants’ Motion, Ex. A, Sanchez Report;

Beckley Incident Report; Reeves Suppl. Report; Newman Suppl. Report; Thomas

Suppl. Report; see also Ex. H, Sanchez Dep. at 11, 18-21; Ex. I, Reeves Dep. at

19-25; Ex. J, Thomas Dep. at 21-23; Ex. M, Beckley Dep. at 14-24; Plaintiff’s

Response, Ex. B, Newman Dep. at 10-16.) The officers further stated that as

Plaintiff continued to actively resist their efforts to subdue and search him, they

administered OC spray and drive stun tasering. (See Sanchez Dep. at 9; Thomas

Dep. at 23; Beckley Dep. at 18-24.) Plaintiff testified, however, that he did not

intentionally kick any of the officers, and he denied that his foot ever made contact

with any officer’s face. (See Plaintiff’s Dep. at 58-61.)

According to Sergeant Sanchez’s report, when the officers were unable to

subdue Plaintiff through the use of OC spray and drive stuns, Plaintiff was placed

in leg shackles and transported to the Genesee County Jail “so that he could be

7Plaintiff’s brief stay in the isolation cell also was captured on video, and

Defendants have provided a copy of this video as well. (See Defendants’ Motion, Ex. E.)

6

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 6 of 37 Pg ID 483
secured better for his and the staff’s safety.” (Defendants’ Motion, Ex. A, Sanchez

Report at 1-2; see also Ex. F, Rule Dep. at 10 (explaining that it was “common

practice[] to transport a prisoner that was noncompliant to the main jail,” which

was better equipped to handle this situation).)8

 Deputy R. Nickleson and

Lieutenant Matthew Rule stated in their reports that upon Plaintiff’s arrival at the

Genesee County Jail, he refused to comply with the officers’ commands that he

exit the police cruiser, so the officers had to remove him from the vehicle and

carry him inside to a report writing area. (See Defendants’ Motion, Ex. A,

Nickleson Incident Report; Rule Suppl. Report.) In contrast, Plaintiff could not

recall being ordered out of the police car, nor did he recall that the officers had to

forcibly remove him from the vehicle. (See Plaintiff’s Dep. at 75.)

According to the incident reports prepared by Lieutenant Rule and Deputy

Nickleson, when Plaintiff was brought into the report writing area of the county

jail, he was instructed to face the wall and told that his handcuffs would be

8Plaintiff testified that as he was being carried in shackles from the Flint lockup to

a police car to be transported to the Genesee County Jail, the officers who were carrying

him slammed his forehead into a metal door frame and forcibly struck him in the

abdomen. (See Plaintiff’s Dep. at 70-73.) Plaintiff was unable to identify these officers,

however, (see id. at 70-72), and it appears from the record that the officers who

transported Plaintiff from the lockup to the county jail were employed by the Flint Police

Department and are not parties to this suit, (see Defendants’ Motion, Ex. A, Nickleson

Incident Report at 1; Rule Suppl. Report at 1; Ex. F, Rule Dep. at 11).

7

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 7 of 37 Pg ID 484
removed. (See Nickleson Incident Report; Rule Suppl. Report; see also Rule Dep.

at 13-14.)9 Plaintiff then was directed to place his hands on the wall so that

Deputy Nickleson could conduct a search, but Plaintiff instead pulled his hands

off the wall. (See Rule Dep. at 14-15; Nickleson Incident Report; Rule Suppl.

Report.) Lieutenant Rule testified that after he instructed Plaintiff repeatedly to

leave his hands on the wall and Plaintiff failed to comply, he first warned Plaintiff

that he would use OC spray if he continued to take his hands off the wall, and then

administered a “one-second burst of OC spray” to Plaintiff’s face when he failed

to heed this warning. (Rule Dep. at 15-17; see also Nickleson Suppl. Report.) 

Plaintiff, in contrast, did not recall being asked to put his hands on the wall or

failing to comply with any such instruction, but instead testified that he was

pushed against the wall and that OC spray was administered without warning. 

(See Plaintiff’s Dep. at 79-80.)10

9There are no video recordings in the record that captured Plaintiff’s encounters

with law enforcement officers once he was moved from the Flint lockup to the Genesee

County Jail. Lieutenant Rule testified that there are video cameras in the booking area of

the county jail, but that recordings are written over after approximately 29 days unless a

request is made to preserve a recording. (See Rule Dep. at 23-24.)

10

In the excerpt of his deposition testimony that was provided to the Court, Plaintiff

did not identify the officers involved in this encounter. Indeed, Lieutenant Rule evidently

was present at Plaintiff’s deposition, and Plaintiff expressly testified that he had no

contact with this individual on the night of the incidents giving rise to this suit. (See id. at

79.)

8

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 8 of 37 Pg ID 485
According to Lieutenant Rule, because he and Deputy Nickleson were

unable to conduct a search of Plaintiff in the report writing area due to his noncompliance and active resistance, the officers re-applied leg irons to Plaintiff and

moved him to a safety cell so that the search could be completed. (See Rule Dep.

at 18-20.) Lieutenant Rule further testified that upon removing Plaintiff’s

restraints in the safety cell, Plaintiff “began to kick and flail and actively resist”

the officers’ efforts to search him and commands to put his arms behind his back,

and that another one-second burst of OC spray was administered at that time in an

“attempt to regain control of the situation.” (Id. at 19-21; see also Nickleson

Suppl. Report; Rule Suppl. Report.) Two other officers, Sergeant William Tucker

and Deputy Leon Skinner, evidently assisted in the attempted search of Plaintiff in

the safety cell, and Sergeant Tucker stated in his report that he used pressure point

compliance grips and peroneal strikes in an effort to counter Plaintiff’s active

resistance and secure his compliance, albeit to little or no effect. (See Defendants’

Motion, Ex. A, Tucker Suppl. Report.)11

11

In the excerpts of his deposition that have been provided to the Court, Plaintiff

has little to say about the time he spent in the safety cell at the county jail. He testified at

one point that he was “slamm[ed] . . . onto a metal bench face-first while [he] was in

handcuffs,” (Plaintiff’s Dep. at 78), but he did not indicate where this occurred or identify

the officers involved in this use of force. Beyond this, Plaintiff recalled only that he was

“moved to an isolation cell” by “perhaps two” officers and left there “for some time.” 

(Id. at 81.) Contrary to Plaintiff’s assertion in his response to Defendants’ motion, (see

9

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 9 of 37 Pg ID 486
Plaintiff remained in the Genesee County Jail for three days, and then

visited an emergency room upon his release. (See Plaintiff’s Dep. at 16-17.) He

testified that he sustained an injury to his left hand and a closed head injury. (See

id. at 15-17.) Plaintiff later was charged with three counts of assaulting, resisting,

or obstructing a police officer, and he pled no contest to one of these three

charges. (See Defendants’ Motion, Ex. B, Information and Judgment.) This suit

followed, with Plaintiff alleging in his complaint (i) that the Defendant law

enforcement officers used excessive force against him following his March 26,

2013 arrest, (ii) that the Defendant Genesee County Sheriff is liable as the

supervisor of the officers who employed excessive force, (iii) that the Defendant

officers are subject to liability in their official capacities in light of the Genesee

County policies and procedures that authorized their misconduct, and (iv) that the

Defendant officers also are liable under Michigan law for assault and battery.

12

III. ANALYSIS

Plaintiff’s Response Br. at 10), Plaintiff did not testify that he was “tased multiple times”

or “beaten” at any point after his arrival at the Genesee County Jail, whether in the

portion of his deposition testimony cited in support of this assertion or elsewhere in the

excerpts of this testimony provided for the Court’s review.

12As noted earlier, Plaintiff is no longer pursuing the other state-law theories of

recovery asserted in his complaint, and he also has agreed to dismiss his claims against

Undersheriff James Gage, Sergeant Pete Stocchi, and Deputies Timothy Lynch and

Radmilla Hovey. 

10

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 10 of 37 Pg ID 487
A. The Standards Governing Defendants’ Motion

Through the present motion, the Defendant Genesee County law

enforcement officers seek an award of summary judgment in their favor on

Plaintiff’s federal claims of excessive force and his state-law claims of assault and

battery. Under the Federal Rule governing this motion, summary judgment is

proper “if the movant shows that there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

As the Supreme Court has explained, “the plain language of Rule 56[] mandates

the entry of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S. Ct. 2548, 2552 (1986).

In deciding a motion brought under Rule 56, the Court must view the

evidence “in a light most favorable to the party opposing the motion, giving that

party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.

Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving

party may not rely on bare allegations or denials, but instead must support a claim

of disputed facts by “citing to particular parts of materials in the record, including

11

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 11 of 37 Pg ID 488
depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing

affidavits “must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “[a] mere scintilla

of evidence is insufficient” to withstand a summary judgment motion; rather,

“there must be evidence on which the jury could reasonably find for the nonmoving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and

citation omitted).

B. Issues of Fact Remain as to Whether Two of the Defendant Officers

Used Excessive Force Against Plaintiff in the Report Writing Area of

the Genesee County Jail, But Plaintiff’s Remaining § 1983 Claims of

Excessive Force Either Lack Evidentiary Support or Are Defeated by

Qualified Immunity.

Although Plaintiff’s federal and state-law claims are not set forth in separate

counts of his complaint, he alleges at various points in the complaint that the

individual Defendant law enforcement officers violated his rights under the U.S.

Constitution through their use of excessive and unreasonable force. (See, e.g.,

Complaint at ¶¶ 10-11, 13(a), 14(c).) The Defendant officers now seek an award

of summary judgment in their favor on these federal § 1983 claims of excessive

12

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 12 of 37 Pg ID 489
force, arguing (i) that the record establishes as a matter of law that the force

employed against Plaintiff was not unreasonable, but instead was a necessary

response to Plaintiff’s active resistance and combative actions, and (ii) that even

assuming there are issues of fact as to the reasonableness of the force used by one

or more of the Defendant officers, the doctrine of qualified immunity would shield

these officers from liability.

As Defendants observe, the Sixth Circuit has held that the Fourth

Amendment standard of “reasonableness” governs the use of force against an

individual like Plaintiff who is detained following a warrantless arrest, at least

until the arrestee receives a probable cause hearing. See Aldini v. Johnson, 609

F.3d 858, 866-67 (6th Cir. 2010). Under this Fourth Amendment standard:

[T]he officer’s use of force [must] be objectively reasonable,

balancing the cost to the individual against the government’s interests

in effecting the seizure. This standard contains a built-in measure of

deference to the officer’s on-the-spot judgment about the level of

force necessary in light of the circumstances of the particular case. 

The officer’s subjective intentions are irrelevant to the Fourth

Amendment inquiry.

Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002) (citations omitted). The

Supreme Court has emphasized that “[t]he ‘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.” Graham v. Connor, 490 U.S. 386,

13

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 13 of 37 Pg ID 490
396, 109 S. Ct. 1865, 1872 (1989). Moreover, “[t]he difficulties of operating a

detention center must not be underestimated by the courts,” and “[m]aintaining

safety and order at these institutions requires the expertise of correctional officials,

who must have substantial discretion to devise reasonable solutions to the

problems they face.” Florence v. Board of Chosen Freeholders of County of

Burlington, __ U.S. __, 132 S. Ct. 1510, 1515 (2012).

1. Plaintiff’s Encounter with Certain of the Defendant Officers in

the Intake Area of the Flint Lockup

Plaintiff’s interactions with the Defendant officers are most appropriately

analyzed in four segments. See Phelps, 286 F.3d at 301. Following his arrest,

Plaintiff first was taken to the City of Flint lockup, led to an intake area, and told

to sit on a bench. In his response to Defendants’ motion, Plaintiff summarizes the

events in this intake area in two brief sentences, citing his own deposition

testimony as establishing (i) that Defendant Newman pushed him onto a bench

while he was “handcuffed” and thus “unable to break his fall,” and (ii) that he was

not “combative, threatening or verbally abusive to any deputies” during this

interaction. (Plaintiff’s Response Br. at 9 (citing Plaintiff’s Dep. at 52, 55, 56).) It

follows, in Plaintiff’s view, that the Defendant officers who interacted with him in

the intake area acted in an “objectively unreasonable” manner by using “force

14

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 14 of 37 Pg ID 491
against a neutralized person.” (Plaintiff’s Response Br. at 20.)

Plaintiff’s account of this incident in his summary judgment brief cannot be

squared with the evidentiary record. Most notably, Plaintiff himself expressly

denied at his deposition that he ever attempted to get up off the bench, (Plaintiff’s

Dep. at 55-57), and the video recordings of Plaintiff in the intake area of the Flint

lockup likewise fail to disclose any effort by Plaintiff to get off the bench, (see

Defendants’ Motion, Ex. E, Camera 48 and Camera 49 Recordings). It follows —

and the video recordings confirm — that Plaintiff was never pushed down onto the

bench from a standing position while “handcuffed” and “unable to break his fall,”

as suggested by Plaintiff in his brief in opposition to Defendants’ motion.

To be sure, the officers in the intake area employed at least some force

against Plaintiff as he sat on the bench. In particular, the video recordings reveal

— and Plaintiff likewise testified, (see Plaintiff’s Dep. at 55) — that when

Plaintiff slid down to the end of the bench at one point in order to speak to Deputy

Newman, one or two officer responded by placing him back at the middle of the

bench. About a minute later, as Plaintiff continued to verbally interact with the

officers and slide around on the bench,

13

 three officers forcibly moved him back to

13The video recordings lack sound, so it cannot be determined what Plaintiff or the

officers were saying to each other.

15

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 15 of 37 Pg ID 492
the middle of the bench and pinned his back against the wall. (See id. at 55-57.) 

In Plaintiff’s view, this record gives rise to issues of fact as to whether the

officers’ use of force against him as he was handcuffed and “neutralized” was

objectively unreasonable. (See Plaintiff’s Response Br. at 20.)

The law is clear, however, that “[n]ot every push or shove . . . violates the

Fourth Amendment.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. Rather, the

Supreme Court has recognized that “police officers are often forced to make splitsecond 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, 109 S. Ct. at 1872. Thus, while the courts have

recognized that the Fourth Amendment is violated through the use of “gratuitous

violence” on an “incapacitated detainee,” Morrison v. Board of Trustees of Green

Township, 583 F.3d 394, 407 (6th Cir. 2009), they have found no such violation

where an officer has employed an appropriate degree of force to achieve a valid

law enforcement objective, see, e.g., Jackson v. Lubelan, No. 15-2563, __ F.

App’x __, 2016 WL 4932166, at *3 (6th Cir. Sept. 16, 2016) (finding “no

precedent” for the conclusion that the defendant officers engaged in a “malicious

or gratuitous use of force” by pulling up on the plaintiff’s handcuffed arms in an

effort to maneuver him into a police car); Khother v. DeEulis, No. 12-1929, 527 F.

16

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 16 of 37 Pg ID 493
App’x 461, 466 (6th Cir. June 6, 2013) (finding that the defendant officer

“reasonably responded to a disruptive detainee” by “pull[ing] [the plaintiff]

forward from his chair to lead him to a holding cell”); Gorajczyk v. City of St.

Clair Shores, No. 08-14764, 2010 WL 3488646, at *6 (E.D. Mich. Aug. 31, 2010)

(holding that the force used by the defendant officer was “not gratuitous,” but

instead was “designed to move [the plaintiff] into [his] home”).

The Court finds that this latter line of cases is controlling here. There is no

indication in the record that any officer punched, struck, or otherwise employed

gratuitous force against Plaintiff while he was in the intake area of the Flint

lockup. Nor did the officers use OC spray or a taser in this initial encounter with

Plaintiff. Rather, the officers merely used the modest degree of force necessary to

ensure that Plaintiff remained in the middle of the bench where he sat, so as to

keep him at a safe distance from others in the intake area. When Plaintiff slid to

one end of this bench, in close proximity to Deputy Newman, he was guided back

to the middle of the bench in a non-violent manner. When he continued to move

around on the bench while engaged in an animated discussion with the officers in

the area, three of the officers forcibly brought him back to the middle of the bench

and pinned him against the wall. The amount of force used in these encounters

was reasonably tailored to the objective the officers sought to achieve, and could

17

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 17 of 37 Pg ID 494
by no means be characterized as “gratuitous” or “violent” in nature. Under this

record, Plaintiff cannot establish a violation of his Fourth Amendment protection

against the unreasonable use of force.

Even if issues of fact remained as to the reasonableness of the force used by

the Defendant officers while Plaintiff was detained in the intake area of the Flint

lockup, the Court finds that the doctrine of qualified immunity would shield the

officers from liability. To overcome the officers’ qualified immunity, Plaintiff

must demonstrate that the “contours of the right [violated] . . . [were] sufficiently

clear that a reasonable officer would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987);

see also Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)

(confirming that it is the plaintiff’s burden to show that the defendant is not

entitled to qualified immunity). While it is not necessary that “the very action in

question has previously been held unlawful,” Plaintiff must show that the

unlawfulness of the Defendant officers’ conduct was “apparent” in light of preexisting law. Anderson, 483 U.S. at 640, 107 S. Ct. at 3039. “If an officer,

therefore, makes a mistake as to how much force is required, he will still be

entitled to qualified immunity so long as that mistake was reasonable.” Solomon

v. Auburn Hills Police Department, 389 F.3d 167, 174 (6th Cir. 2004). In this

18

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 18 of 37 Pg ID 495
manner, “[q]ualified immunity will often operate to protect officers from the

sometimes hazy border between excessive and acceptable force.” Solomon, 389

F.3d at 174 (internal quotation marks and citations omitted).

Plaintiff has failed as a matter of law to establish that any Fourth

Amendment violation committed by the Defendant officers in the intake area of

the Flint lockup would have been apparent to these officers in light of pre-existing

law.14 In his fairly terse discussion of qualified immunity as it applies to the facts

presented here, Plaintiff relies principally on the Sixth Circuit’s decisions in

Phelps, supra, 286 F.3d at 301-02, and McDowell v. Rogers, 863 F.2d 1302, 1307

(6th Cir. 1988), for the proposition that the use of force against a neutralized, nonviolent, and non-resisting detainee is objectively unreasonable. (See Plaintiff’s

Response Br. at 20, 24.)15 As observed earlier, however, the cases cited by

Plaintiff all involved the use of gratuitous force against an incapacitated and fully

14Defendants contend in their motion that the relevant pre-existing law for

purposes of the Court’s qualified immunity inquiry is the Fourteenth Amendment’s

“shocks the conscience” standard, since at the time of the incidents giving rise to this suit,

the Sixth Circuit purportedly had not yet held that the Fourth Amendment standard of

reasonableness governs the use of force against arrestees who have not yet received a

probable cause hearing. (See Defendants’ Motion, Br. in Support at 15-16.) The Sixth

Circuit, however, adopted this Fourth Amendment standard in Aldini, 609 F.3d at 866-87,

and this 2010 decision predated the events of this case by nearly three years.

15Plaintiff also cites the Sixth Circuit’s decisions in Robinson v. Bibb, 840 F.2d

349, 351 (6th Cir. 1988), and Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir.

1991), but these cases addressed the use of deadly force and provide no guidance here.

19

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 19 of 37 Pg ID 496
neutralized individual. See Morrison, 583 F.3d at 407 (addressing allegations that

the defendant officer “repeatedly pushed [the plaintiff’s] face to the ground every

time she attempted to speak while she was already handcuffed, lying down, and

compliant with the officer’s commands”); Phelps, 286 F.3d at 297, 301

(considering evidence that after the defendant officer “tackled the handcuffed

[plaintiff] and was sitting on top of him,” the officer “hit [the plaintiff] in the face

twice” and “banged his head into the floor at least three times”); McDowell, 863

F.2d at 1303 (evidence at trial indicated that “after [the plaintiff] had been

handcuffed, and at a time when he was offering no resistance, one of the

[defendant] officers hit him with a nightstick, breaking a rib”).

As already discussed, the record here fails to disclose any use of gratuitous

or violent force against Plaintiff in the intake area of the Flint lockup. Instead, the

evidence shows that the Defendant officers employed only modest force against

Plaintiff to keep him positioned near the center of the bench where he was seated,

and that these actions served the legitimate law enforcement objectives of ensuring

officer safety and maintaining order in the intake area. Because Plaintiff has not

demonstrated that the officers’ actions in the intake area violated any clearly

established Fourth Amendment standard of reasonableness, it follows that the

officers are entitled to qualified immunity.

20

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 20 of 37 Pg ID 497
2. The Use of Force Against Plaintiff in an Isolation Cell at the Flint

Lockup

After he initially was placed on a bench in the intake area, Plaintiff next was

moved to an isolation cell to be searched. According to the Defendant officers

involved in this encounter — specifically, Sergeant Sanchez, Deputy Reeves,

Deputy Newman, Deputy Thomas, and Deputy Beckley — Plaintiff was

combative, uncooperative, and repeatedly disregarded verbal commands as the

officers attempted to search him, and he kicked Sergeant Sanchez in the face

during the course of this struggle. The officers testified that in response to

Plaintiff’s active resistance, they administered OC spray and drive stuns with their

tasers. (See Sanchez Dep. at 9, 19-21; Thomas Dep. at 21-23; Beckley Dep. at 17-

24.) Plaintiff testified, in contrast, that he did not intentionally kick any of the

officers, and he denied that his foot ever made contact with any officer’s face. 

(See Plaintiff’s Dep. at 58-61.)

In arguing that his Fourth Amendment rights were violated during this

encounter, Plaintiff again relies on the principle that it is unreasonable to inflict

gratuitous force against a neutralized and compliant detainee. Yet, beyond his

testimony that he did not kick anyone, Plaintiff has produced no evidence that he

was compliant, cooperative, non-combative, or non-resistant as the Defendant

21

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 21 of 37 Pg ID 498
officers attempted to search him in the isolation cell.16

 Consequently, the

testimony of the Defendant officers as to Plaintiff’s various acts of resistance —

including flailing about, kicking his legs, yelling, struggling with the officers, and

disregarding the officers’ verbal commands, (see Sanchez Dep. at 11, 19; Reeves

Dep. at 19-25; Thomas Dep. at 21-23; Beckley Dep. at 14-23) — stands unrefuted

in the record.

17

 Against this evidentiary backdrop of force used to subdue a

combative and non-compliant detainee, Plaintiff cannot show that the Defendant

officers violated the Fourth Amendment protection against the unreasonable use of

force during the time that Plaintiff was detained and searched in an isolation cell at

16As noted earlier, the parties have produced only selected excerpts of Plaintiff’s

deposition testimony. To the extent that Plaintiff might have described in greater detail

what transpired while he was kept in the isolation cell in the Flint lockup, no such

testimony is in the record before this Court. 

17

In his response to Defendants’ motion, Plaintiff seemingly suggests that the video

recording of his time in the isolation cell contradicts the officers’ testimony as to what

transpired in this cell. Yet, he does not identify any specific portions of the recording that

disclose the use of force against a neutralized and compliant detainee. Neither does the

Court’s own review of this recording cast doubt on the account of the Defendant officers,

where (i) Plaintiff’s upper body generally is not visible, (ii) his legs regularly move about

during the recording, whether due to his own flailing or the officers’ repositioning of his

body as they conduct their search, and (iii) there is no audio that would either corroborate

or contradict the officers’ testimony that Plaintiff repeatedly disregarded their verbal

commands and warnings. Accordingly, while the courts have deemed it appropriate to

disregard a party’s account that is “blatantly contradicted” by video evidence, Scott v.

Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007); see also Griffin v. Hardrick,

604 F.3d 949, 954 (6th Cir. 2010), the video recordings in this case provide no such basis

for discounting the testimony of the Defendant officers. 

22

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 22 of 37 Pg ID 499
the Flint lockup.

3. Plaintiff’s Encounter with Certain of the Defendant Officers in

the Report Writing Area of the Genesee County Jail

Following his brief stay in an isolation cell at the Flint lockup, Plaintiff was

placed in leg shackles and transported to the Genesee County Jail.

18

 Upon his

arrival, Defendants Rule and Nickleson brought him to the report writing area of

the county jail, where he was instructed to face the wall and advised that his

handcuffs would be removed. (See Rule Dep. at 13-14.) According to Lieutenant

Rule, Plaintiff then “was given loud, clear verbal commands to place his hands on

the wall” so that Deputy Nickleson could conduct a search, but Plaintiff

disregarded this order and “pulled his hands off the wall.” (Id. at 14.) Lieutenant

Rule testified that after Plaintiff disregarded three such commands, he was warned

that the officers would use OC spray if he continued to resist their instructions. 

18As noted earlier, Plaintiff testified that while he was being moved from the Flint

lockup to the police car that would transport him to the county jail, the officers who were

carrying him slammed his forehead into a metal door frame and punched him in the

abdomen. (See Plaintiff’s Dep. at 70-73.) Plaintiff could not identify these officers,

however, nor could he say whether the officers were employed by the City of Flint or

Genesee County. (See id. at 70-72.) Accordingly, because Plaintiff has named only

Genesee County law enforcement officers as defendants in this case, and because it is a

well-established principle of federal § 1983 law that “[e]ach defendant’s liability must be

assessed individually based on his own actions,” Binay v. Bettendorf, 601 F.3d 640, 650

(6th Cir. 2010), the unlawful force allegedly used against Plaintiff as he was transported

from the Flint lockup to the Genesee County Jail cannot serve as the basis for a § 1983

claim against any of the Defendant officers.

23

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 23 of 37 Pg ID 500
(See id. at 15-16.) When Plaintiff still refused to comply despite this warning,

Lieutenant Rule applied a “one-second burst of OC spray” to Plaintiff’s face. (Id.

at 16-17.)

Plaintiff’s recollection of this encounter is different. He testified that upon

entering the report writing area, he was pushed against the wall, his pants were

“ripped off,” and OC spray was administered without warning. (Plaintiff’s Dep. at

79-80.) Plaintiff could not recall being given a verbal command to put his hands

on the wall, nor did he recall that he was given any warning that OC spray would

be administered if he removed his hands from the wall. (See id. at 79-80.) Rather,

Plaintiff testified that he was “always compliant during this whole incident.” (Id.

at 80.)

This factual dispute precludes the determination sought in Defendants’

motion — namely, that the force employed by the Defendant officers during their

encounter with Plaintiff in the report writing area of the county jail was reasonable

as a matter of law. The Sixth Circuit has recognized that the use of pepper spray

on an individual who is secured and compliant constitutes excessive force. See

Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004). 

Accepting Plaintiff’s account as true, this is what happened here. Moreover, the

Defendant officers cannot appeal to qualified immunity as to this incident, because

24

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 24 of 37 Pg ID 501
the principle recognized in Champion was deemed “clearly established” at the

time of this 2004 decision. 380 F.3d at 903. Accordingly, Plaintiff may go

forward with his § 1983 claims of excessive force against the two Defendant

officers involved in this incident, Lieutenant Rule and Deputy Nickleson.

19

4. The Use of Force Against Plaintiff in a Safety Cell at the County

Jail

The fourth and final incident giving rise to Plaintiff’s § 1983 claims of

excessive force occurred when Plaintiff was placed back in leg irons and moved to

a safety cell at the Genesee County Jail. According to Lieutenant Rule, after

Plaintiff was taken to the safety cell and his restraints were removed, he “began to

kick and flail and actively resist” the officers’ efforts to conduct a strip search. 

(Rule Dep. at 19-20.) When Plaintiff disregarded Lieutenant Rule’s “loud, clear

verbal commands” and continued to “kick[] and flail[] and pull[] his arms away,”

the officer “administered an additional one-second burst of OC spray to attempt to

19Notably, in the excerpts of his deposition testimony provided for the Court’s

review, Plaintiff did not identify the officers who participated in the incident in the report

writing area of the county jail. Indeed, Plaintiff was expressly asked whether he had any

contact with Lieutenant Rule on the night of the incidents giving rise to this suit, and he

responded that he “did not.” (Plaintiff’s Dep. at 79.) Nonetheless, the record is clear that

Lieutenant Rule and Deputy Nickleson were the two Defendant officers who escorted

Plaintiff to the report writing area and attempted to conduct a search, and Lieutenant Rule

specifically testified that he administered OC spray to Plaintiff’s face. Consequently,

there is no concern that a Defendant officer might face liability for activities in which he

did not participate.

25

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 25 of 37 Pg ID 502
regain control of the situation.” (Id. at 20-21.) Another officer on the scene,

Defendant Tucker, stated in a police report that he used pressure point compliance

grips and peroneal strikes in an attempt to counter Plaintiff’s active resistance and

secure his compliance, but that these efforts were largely unavailing. (See

Defendants’ Motion, Ex. A, Tucker Suppl. Report.)

Plaintiff has failed to dispute any of the facts set forth in the Defendant

officers’ accounts of this incident. Although Plaintiff claims in his response to

Defendants’ motion that he was “tased multiple times, sprayed with OC spray and

beaten” upon his arrival at the Genesee County Jail, (Plaintiff’s Response Br. at

10), the deposition testimony cited in support of this assertion addresses an

altogether different encounter, and not anything that occurred in the county jail.

20

Even assuming that the Court owed a duty to search the record on Plaintiff’s

behalf, the sole apparent reference to this incident in Plaintiff’s deposition

testimony is his recollection that he was “left in an isolation cell for some time.” 

(Plaintiff’s Dep. at 81.) In the portions of his deposition testimony that have been

submitted to the Court, Plaintiff did not state that he was subjected to force in this

isolation cell, nor did he indicate whether he was fully neutralized or compliant at

20Specifically, the cited excerpt of Plaintiff’s deposition testimony concerns force

inflicted on him as he was taken from the Flint lockup to a police car in preparation for

his transport to the county jail. (See Plaintiff’s Dep. at 72.) 

26

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 26 of 37 Pg ID 503
the time any such force was employed.

21

Under this record, Plaintiff cannot establish that any Defendant officer used

excessive force against him while he was held in a safety cell at the county jail. 

Although Lieutenant Rule and Sergeant Tucker have stated that they employed

such measures as OC spray, pressure point compliance grips, and peroneal strikes,

the record demonstrates without contradiction that they did so only after Plaintiff

actively resisted their efforts to search him and failed to comply with their verbal

commands that he cease this resistance. The law is clear that a police officer may

employ a reasonable degree of force to restrain an individual who is uncooperative

and actively resisting legitimate law enforcement objectives such as a search, see,

e.g., Khother, 527 F. App’x at 466; Hagans v. Franklin County Sheriff’s Office,

695 F.3d 505, 509 (6th Cir. 2012); Caie v. West Bloomfield Township, No. 11-

1378, 485 F. App’x 92, 96-97 (6th Cir. June 18, 2012); Burchett v. Kiefer, 310

F.3d 937, 944 (6th Cir. 2002); Brady v. City of Westland, 1 F. Supp.3d 729, 739-

40 (E.D. Mich. 2014), and there is no evidence that any Defendant officer acted in

excess of this lawful authority during the period that Plaintiff was detained in a

21As noted earlier, Plaintiff testified at one point in his deposition that he was

slammed face-first onto a metal bench while in handcuffs. (See id. at 78.) He did not

indicate where this incident occurred, however, nor did he identify the officers involved

in this use of force. Consequently, it would be a matter of pure conjecture to determine

whether this incident occurred in a safety cell at the county jail.

27

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 27 of 37 Pg ID 504
safety cell. Accordingly, the Defendant officers are awarded summary judgment

in their favor on Plaintiff’s § 1983 claims of excessive force arising from this

incident.

C. Plaintiff Has Failed to Provide Evidentiary Support for His Claims

Against the Defendant Officers in Their Official Capacities.

In his complaint, Plaintiff evidently has brought his claims against the

Defendant law enforcement officers in both their individual and their official

capacities. As to the latter, claims against an officer in his or her official capacity

are treated as claims against the governmental entity by which the officer is

employed. See Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991); Mason

v. City of Warren Police Department, No. 10-14182, 2011 WL 5025841, at *11

(E.D. Mich. Oct. 21, 2011). In this case, therefore, Plaintiff’s official-capacity

claims are governed by the standards applicable to claims against Genesee County.

Under well-settled principles, the County “cannot be held liable under §

1983 for an injury inflicted solely by its employees or agents.” Gregory v. Shelby

County, 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell v. Department of Social

Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037 (1978)). Rather, “[f]or liability to

attach, there must be execution of a government’s policy or custom which results

in a constitutional tort.” Gregory, 220 F.3d at 441. Moreover, Plaintiff must

28

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 28 of 37 Pg ID 505
establish that “through its deliberate conduct, the [County] was the ‘moving force’

behind” the violation of his constitutional rights — that is, he “must show that the

[County’s] action was taken with the requisite degree of culpability and must

demonstrate a direct causal link between the [County’s] action and the deprivation

of federal rights.” Gregory, 220 F.3d at 442 (quoting Board of County Comm’rs

of Bryan County v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 1389 (1997)).

As Defendants observe, Plaintiff’s complaint is devoid of allegations

identifying any Genesee County policy or custom that led to the deprivation of his

Fourth Amendment rights. He fares little better in his response to Defendants’

motion, suggesting in vague and conclusory fashion that evidence of the requisite

Genesee County policy or custom can somehow be found in the video recordings

of Plaintiff’s encounters with the Defendant officers in the Flint lockup. (See

Plaintiff’s Response Br. at 14.) Yet, the Court already has determined that

Plaintiff’s Fourth Amendment rights were not violated in these encounters, and it

follows that Genesee County cannot be charged with liability for these incidents. 

See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001).

Plaintiff arguably also seems to suggest that the County’s failure to

investigate the incidents giving rise to this suit or discipline any of the officers

involved may serve as evidence of a County policy or practice of acquiescing in

29

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 29 of 37 Pg ID 506
officer misconduct. (See Plaintiff’s Response Br. at 13-14.) As a threshold

matter, however, Plaintiff provides no evidentiary support for his claim that there

was no investigation of the incidents that triggered this action. To the contrary,

Sheriff Pickell testified that he reviewed the video recordings of Plaintiff’s

encounters with the Defendant officers at the Flint lockup. (See Defendants’

Motion, Ex. K, Pickell Dep. at 26; see also Plaintiff’s Response Br. at 17

(acknowledging that “[t]he incident complained of here was investigated the

following morning”).)

In any event, while a mishandled investigation or inadequate disciplinary

measures can serve as evidence of a “policy, custom, or practice . . . of condoning”

wrongdoing by police officers, this evidence must be accompanied by a showing

“that the flaws in this particular investigation were representative of (1) a clear and

persistent pattern of illegal activity, (2) which the [County] knew or should have

known about, (3) yet remained deliberately indifferent about, and (4) that the

[County’s] custom was the cause of” the particular misconduct committed in this

case. Thomas v. City of Chattanooga, 398 F.3d 426, 432-33 (6th Cir. 2005). 

Plaintiff has not even attempted such a showing here. Indeed, as his sole example

of “wrongdoing” that the County allegedly condoned, Plaintiff points to the video

and the testimony of Defendant Newman as purportedly revealing that this officer

30

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 30 of 37 Pg ID 507
pushed him while he was handcuffed and caused him to “fall[] ‘face-first’ into a

bench in the booking area.” (Plaintiff’s Response Br. at 15.) As already

discussed, however, the evidentiary record conclusively refutes this account of

Plaintiff’s interactions with Deputy Newman. Accordingly, Plaintiff’s officialcapacity claims against the Defendant officers are subject to dismissal as

inadequately pled and for lack of evidentiary support.

D. Plaintiff Has Failed to Provide a Basis for Charging Sheriff Pickell with

Liability for any Violations of His Federal Constitutional Rights.

As his final claim brought under § 1983, Plaintiff seeks to hold Genesee

County Sheriff Pickell liable for the deprivation of his Fourth Amendment right to

be free from excessive force. Plaintiff acknowledges that this claim cannot rest

solely on Sheriff Pickell’s supervisory authority over or right to control the

Defendant officers who allegedly violated his Fourth Amendment rights. See

Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Rather, Plaintiff must show

that Sheriff Pickell “either encouraged the specific incident of misconduct [by a

Defendant officer] or in some other way directly participated in it.” Shehee, 199

F.3d at 300 (internal quotation marks and citation omitted). “At a minimum a

plaintiff must show that the [supervisory] official at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct of the

31

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 31 of 37 Pg ID 508
offending officers.” Shehee, 199 F.3d at 300 (internal quotation marks and

citation omitted).

In an effort to make this showing, Plaintiff points to Sheriff Pickell’s

determination following an investigation that the Defendant officers acted

appropriately. (See Plaintiff’s Response Br. at 17.)

22

 Because the record, in

Plaintiff’s view, demonstrates that the Defendant officers did not act

appropriately, Plaintiff suggests that Sheriff Pickell’s failure to take action

following his investigation reflects his approval of or knowing acquiescence in

officer misconduct, and thereby provides a basis for charging him with liability.

Once again, however, the evidentiary support for this theory of liability is

lacking. As his sole example of officer misconduct in which Sheriff Pickell

purportedly acquiesced, Plaintiff cites the video recording that discloses the use of

OC spray on Plaintiff after he was placed in an isolation cell at the Flint lockup. 

In Plaintiff’s view, this application of OC spray was inconsistent with a “general

order” that purportedly prohibits the use of OC spray on an individual who is lying

22Plaintiff notably fails to cite any evidence in support of this assertion. So far as

the Court is aware, the record discloses only that Sheriff Pickell reviewed the video

recordings of the encounters between Plaintiff and certain of the Defendant officers while

Plaintiff was detained at the Flint lockup, and that Sheriff Pickell concluded upon this

review that the officer conduct captured in these recordings was appropriate. (See Pickell

Dep. at 26.)

32

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 32 of 37 Pg ID 509
down on the ground and in restraints or otherwise subdued. (See Plaintiff’s

Response Br. at 17.)23 Yet, as previously discussed, Plaintiff has failed to produce

evidence that he was compliant and neutralized at the time OC spray was

administered in the isolation cell, nor does the video recording of this encounter

evidence any such compliance. Consequently, the sole factual predicate for

Plaintiff’s § 1983 claim against Sheriff Pickell lacks evidentiary support, and

Sheriff Pickell therefore is entitled to summary judgment in his favor on this

claim.

E. Issues of Fact Remain as to Plaintiff’s State-Law Claims of Assault and

Battery Against Defendants Rule and Nickleson Arising from the

Incident in the Report Writing Area of the Genesee County Jail, But

Plaintiff’s Remaining Assault and Battery Claims Are Defeated by

Governmental Immunity.

Although Plaintiff arguably has asserted a variety of state-law claims in his

complaint, he clarifies in his response to Defendants’ motion that he only wishes

to pursue his state-law claims of assault and battery against the Defendant officers. 

Unfortunately, the parties touch upon this state-law theory of recovery only briefly

in their summary judgment submissions. Defendants address this state-law theory

23As Defendants observe, the “general order” quoted by Plaintiff is unsupported by

citation to the record, nor does it appear that a copy of any such order has been provided

for the Court’s review. Thus, Plaintiff cannot properly rely on this general order as

evidentiary support for his claim against Sheriff Pickell.

33

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 33 of 37 Pg ID 510
and Plaintiff’s federal § 1983 claims of excessive force together, (see Defendants’

Motion, Br. in Support at 12-13), without citing any state law whatsoever that

might govern the former theory of recovery. Plaintiff, for his part, references the

qualified immunity conferred upon the Defendant officers under Michigan law,

(see Plaintiff’s Response Br. at 17-19), but then makes no effort to demonstrate

why this immunity should be unavailable under the facts of this case. Thus left to

its own devices, the Court addresses Plaintiff’s state-law claims only briefly, and

concludes that these claims withstand summary judgment to the same extent as

Plaintiff’s analogous § 1983 claims of excessive force.

Under Michigan’s Governmental Tort Liability Act (“GTLA”) as construed

by the Michigan Supreme Court, the individual Defendant law enforcement

officers are immune from liability for the state-law intentional tort claims asserted

in Plaintiff’s complaint if — among other elements that are not at issue here —

their actions “were undertaken in good faith, or were not undertaken with malice.” 

Odom v. Wayne County, 482 Mich. 459, 480, 760 N.W.2d 217, 228 (2008). In

contrast to the objective standard of reasonableness that governs a qualified

immunity inquiry under § 1983, the good faith standard under Michigan’s

governmental immunity law is “subjective, not objective.” Romo v. Largen, 723

F.3d 670, 677 (6th Cir. 2013); see also Cohn v. DeWeese, No. 09-12187, 2010 WL

34

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 34 of 37 Pg ID 511
3906227, at *21 (E.D. Mich. Sept. 30, 2010). Nonetheless, both the Sixth Circuit

and this Court have recognized that “[t]he question of an officer’s good faith under

Michigan law overlaps considerably, if not entirely, with [the federal qualified

immunity] analysis of whether the officer’s actions were objectively reasonable

under the circumstances.” Malory v. Whiting, No. 11-1468, 489 F. App’x 78, 86

(6th Cir. July 13, 2012); see also Cohn, 2010 WL 3906227 at *21-22.

Against this backdrop, the Court’s earlier analysis of Plaintiff’s Fourth

Amendment claims of excessive force is largely dispositive of Plaintiff’s state-law

claims of assault and battery. As previously explained, the force used by the

Defendant officers in the Flint lockup and in the safety cell at the Genesee County

Jail did not transgress the Fourth Amendment protection against unreasonable

seizures. On the other hand, the Court determined that issues of fact remain as to

the reasonableness of the force employed by Defendants Rule and Nickleson

during their encounter with Plaintiff in the report writing area of the county jail. 

Neither side has suggested any basis for the Court to depart from these findings in

determining under Michigan law whether the challenged actions of the Defendant

officers were undertaken in good faith and without malice. Accordingly, to the

same extent that Plaintiff’s § 1983 claims of excessive force withstand summary

judgment, his analogous state-law claims of assault and battery likewise may go

35

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 35 of 37 Pg ID 512
forward.

IV. CONCLUSION

For the reasons set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’

September 30, 2015 motion for summary judgment (docket #55) is GRANTED IN

PART and DENIED IN PART, in accordance with the rulings in this opinion and

order. Specifically, Plaintiff may go forward with his federal 42 U.S.C. § 1983

claims of excessive force and his state-law claims of assault and battery against

Defendants Rule and Nickleson arising from the March 26, 2013 encounter

between Plaintiff and these two officers in the report writing area of the Genesee

36

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 36 of 37 Pg ID 513
County Jail, but summary judgment is awarded in Defendants’ favor as to (i)

Plaintiff’s remaining § 1983 and state-law claims against these two Defendant

officers, and (ii) Plaintiff’s federal and state-law claims against all other

Defendants.

SO ORDERED.

s/Gerald E. Rosen 

United States District Judge

Dated: December 27, 2016

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

and/or counsel of record on December 27, 2016, by electronic and/or ordinary

mail.

s/Julie Owens 

Case Manager, (313) 234-5135

37

2:14-cv-13997-SFC-RSW Doc # 63 Filed 12/27/16 Pg 37 of 37 Pg ID 514