UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HENRY PARKER,

Plaintiff,

v.

CITY OF TAYLOR, JAMES PILCHAK,

BRIAN WOJTOWICZ, STEVE PORTA,

CHRIS CATES, DOMINIC DIGGSTAYLOR, in their individual and official

capacities,

Defendants.

 /

Case No. 15-10113

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [26]

This matter comes before the Court on Defendants’ motion for summary judgment.

Plaintiff brings several claims against Defendants, alleging excessive use of force, false

arrest and/or imprisonment, unreasonable seizure without probable cause, and malicious

prosecution. For the reasons stated herein, Defendants’ motion is GRANTED IN PART and

DENIED IN PART.

I. Facts

On the evening of January 20, 2013, Plaintiff, who was 71 at the time, received a call

from his daughter-in-law informing him that his son was at Taylor Police Department and

needed to be bailed out of jail. (Dkt. 28, at 9.) Plaintiff drove toward Taylor Police

Department, and asked several people for help finding the station. (Id. at 9-10.) Ultimately,

Plaintiff made it to the station, but (purportedly unbeknownst to him) entered and walked

through a restricted police-only parking lot. (Id. at 10.) Plaintiff, wearing a winter coat with

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the hood on, was observed “slowly walking” through the restricted lot by Defendant officers

Pilchak and Wojtowicz. (Dkt. 26, at 12.) The officers radioed into dispatch that they “had

one in the back restricted parking lot.” (Id.) 

Defendants Pilchak and Wotjowicz approached Plaintiff asked why he was “peeking

in” the police cars. (Dkt. 28-2, at 21.) Plaintiff testified that he responded by that he was

there to get somebody out of jail. (Id.) Plaintiff admits he was “confused” by some of the

officers’ questions and “started thinking maybe I oughtn’t to say nothing at all.” (Id. at 30.)

Plaintiff further testified, “I felt like these guys are really trying to irritate me ... so I just

hushed. So I just started saying I don’t know, I don’t know.” (Id. at 31.) Around this time,

Defendants Porta, Cates, and Diggs-Taylor came from inside the station to the parking lot.

(Dkt. 1, at ¶ 12.) Plaintiff was told he was trespassing and directed to place his hands on

the hood of a police car; he immediately complied. (Id. at 21-22.) Over the next “matter of

seconds,” the stories of the parties vary—but only slightly. 

Plaintiff claims he had both of his hands on the police vehicle and had his back toward

the Defendant officers, when one officer “wrenched [his] hand off of the car and twisted it

behind [his] back” to handcuff him. (Dkt. 1, at ¶¶ 14-15.) Plaintiff admits he turned his head

around and looked over his left shoulder, and Defendants told him to stop resisting. (Dkt.

28-2, at 22-23.) Then, Plaintiff claims, “each of the individually-named Defendants began

to punch [him] in his side and thigh and knee him in his buttocks, or otherwise fail[] to

intervene on [his] behalf.” (Dkt. 1, at ¶ 16.) Plaintiff contends the beating by Defendants

took place both “before and after” he was handcuffed, and he did not resist in any way.

(Dkt. 28-2, at 24.) Plaintiff testified he would think the entire incident—from the time he was

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told to put his hands on the car until the time the alleged excessive force ended—took

place “[i]n a matter of seconds.” (Id.) 

Defendants claim that while trying to handcuff Plaintiff, he didn’t merely look over his

shoulder, but rather turned around 180 degrees and tensed up with an aggressive look on

his face. (See, e.g., Dkt 28-3, at 18.) Defendant Wojtowicz claims Plaintiff was “actively

resisting arrest.” (Dkt. 28-4, at 17.) And Defendant Pilchak testified that the thought

“crossed his mind” that Plaintiff may try to flee or fight with the officers. (Dkt. 28-3, at 18.)

Defendants admit several knee kicks, elbow strikes, and other pain compliance techniques

were administered or attempted so as to gain control of Plaintiff and get him handcuffed.

(Dkt. 26, at 14-18.)

Plaintiff spent several hours in jail and was permitted to leave after paying a bond of

$100. (Dkt. 28-2, at 26-27.) Plaintiff was charged with trespassing and resisting arrest, but

the charges were subsequently dismissed.1 (Dkt. 1, at ¶¶ 18-19.) On January 12, 2015,

Plaintiff filed suit against the City of Taylor and the five officers involved pursuant to 42

U.S.C. § 1983 and related state law, alleging violation of his Fourth Amendment

constitutional right to be free from excessive force, false arrest and/or false imprisonment,

unreasonable seizure without probable cause, and malicious prosecution. Defendants now

seek summary judgment in their favor.

 1 The Register of Actions from the criminal matter in which Plaintiff was charged with one

count of trespassing indicates the case was “dismissed by party per plea” on May 22, 2013,

and there was “no reason given.” (Dkt. 28-12.)

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II. Summary Judgment

It is well established that summary judgment under Federal Rule of Civil Procedure

56 is proper when the movant “shows that there is no genuine dispute as to any material

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

reviewing the record, “the court must view the evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v. Sierra

Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986)) (quotations omitted). “[S]ummary judgment will not lie

if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

When considering the material facts on the record, a court must bear in mind that

“[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. at 252.

III. Analysis

A. Counts II, III, IV, and V

Plaintiff brings state and constitutional claims of false arrest and/or imprisonment,

unreasonable seizure without probable cause, and malicious prosecution. Each of these

claims require Plaintiff to show that there was not probable cause for his arrest. See, e.g.,

Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir. 1997) (false arrest claim under §

1983); Hansel v. Bisard, 30 F. Supp. 2d 981, 985 (E.D. Mich. 1998) (malicious prosecution,

false arrest, and false imprisonment claims under § 1983); Drouillard v. Metropolitan Life

Ins. Co., 107 Mich. App. 608, 619-20 (1981) (malicious prosecution claim under M.C.L. §

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600.2907). That is, if probable cause for Plaintiff’s arrest existed, these claims are

precluded. Hansel, 30 F. Supp. 2d at 986.

The Supreme Court has defined “probable cause” as the “facts and circumstances

within the officer’s knowledge that are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown, that the suspect has

committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443

U.S. 31, 37 (1979). Probable cause is reasonable grounds for belief, supported by “less

than prima facie proof, but more than mere suspicion.” United States v. Ferguson, 8 F.3d

385, 392 (6th Cir. 1993) (internal citation and quotation omitted). 

Plaintiff’s only argument regarding probable cause for the arrest is that “[s]ince both

counts [of Trespassing and Interference with Police Authority] were dismissed, there was

never probable cause for the arrest.” (Dkt. 28, at 19.) Plaintiff cites no case law in support

of this argument. And the Sixth Circuit has held the opposite. See, e.g., Bowen v. Phalen,

91 Fed. App’x 477 (6th Cir. 2004) (affirming summary judgment and finding probable cause

existed to arrest plaintiff for trespassing, even though charge was subsequently dismissed).

Probable cause does not depend on whether charges are brought or later successfully

proven; rather, the question is whether the officers “were justified in their belief that plaintiff

had probably committed or was committing a crime.” Criss v. City of Kent, 867 F.2d 259,

262 (6th Cir. 1988). 

The Court finds the Defendant officers had probable cause to arrest Plaintiff. As

discussed, on the night of Plaintiff’s arrest, it was dark, Plaintiff was wearing a heavy coat

and hood, and was observed by Defendant officers Pilchak and Wojtowicz walking through

a restricted police-only lot. Defendant officers Porta, Cates, and Diggs-Taylor responded

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to a radio call that there was an individual in the back parking lot. Plaintiff admits when

approached by Defendant officers he was “confused” by their questions, and ultimately

responded “I don’t know, I don’t know.” (Dkt. 28-2, at 30-31.) The Court finds, even in a

light most favorable to Plaintiff, the officers had probable cause to arrest Plaintiff, and thus,

Plaintiff’s false arrest and/or imprisonment, unreasonable seizure without probable cause,

and malicious prosecution claims fail.

B. Count I 

Plaintiff also alleges the Defendant officers used excessive force during his arrest.

The use of excessive force during an arrest of a person at liberty is analyzed under the

Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S.

386, 388 (1989). That is, a police officer may use only such force as is objectively

reasonable under the circumstances. Id. at 397. In evaluating the reasonableness of force,

courts must examine the facts and circumstances of each case, including “the severity of

the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade arrest

by flight.” Id. at 396. The court should judge the lawfulness of the conduct “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. 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.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002). 

Defendant contends summary judgment is appropriate here under the

reasonableness standard, “giving deference to the police officers that [] were forced to

make split-second decisions about the amount of force necessary.” (Dkt. 26, at 25.)

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Plaintiff, on the other hand, contends the use of force was unreasonable. Plaintiff points to

the (lack of) severity of the crime of trespassing, and contends Plaintiff “was not trying to

flee or even attack Defendants in any way.” (Dkt. 28, at 23-24.) In addition, Plaintiff argues

force was used after he was handcuffed, and such force is “excessive as a matter of law.”

(Id. at 25.) 

The Court finds there are genuine issues of material facts regarding whether the

amount of force used was reasonable under the circumstances. First, Plaintiff alleges at

least some blows and strikes occurred after he was handcuffed. Under Sixth Circuit

precedent, force against a neutralized person is unreasonable. See, e.g., Phelps v. Coy,

286 F.3d 295, 301 (6th Cir. 2002). Moreover, Plaintiff contends he did not try to flee or

resist. In the light most favorable to Plaintiff, the incident of alleged excessive force took

place when Plaintiff, a 71-year-old, was in a police-only parking lot directly outside the

police station, surrounded by five officers, and at least partially up against a vehicle. Under

these circumstances, the Court concludes there are genuine issues of fact precluding

summary judgment. See Meirthew v. Amore, 417 Fed. App’x 494, 497 (6th Cir. 2011)

(affirming genuine issues of fact precluded summary judgment when force was used on

plaintiff who was “unarmed, handcuffed, surrounded by police officers, physically

restrained, and located in the secure confines of a police station”). 

C. Count VI

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Plaintiff asserts Defendant City of Taylor is liable for failing to properly train and/or

supervise police officers regarding the proper use of force.2 A municipality may not be liable

under § 1983 based on a theory of respondeat superior. Monell v. Dep’t of Social Servs.,

436 U.S. 658, 690 (1978). To establish municipal liability, a plaintiff must show that the

alleged failure to properly train its officers “amounts to a deliberate indifference to the rights

of persons with whom police come in contact.” City of Canton v. Harris, 489 U.S. 378, 388

(1989). Deliberate indifference requires a showing that a “municipal actor disregarded a

known or obvious consequence of his action.” Stemler, 126 F.3d at 865 (internal citation

omitted). Here, Defendants contend they are entitled to summary judgment on the matter

of municipal liability. The Court agrees.

Although Plaintiff presents some evidence of the individual Defendant officers’

disciplinary history (e.g., that Defendant Wojtowicz has been the subject of three internal

affairs investigations and Defendant Porta has been the subject of one internal affairs

investigation), the evidence on this issue does not demonstrate a pattern of regular

constitutional violations by the named officers that Defendant City of Taylor ignored. (Dkt.

28, at 12-14.) Defendant has proffered evidence that the City of Taylor’s police officers

receive in-depth field training that takes place over approximately four months, and

subsequently are reviewed daily by shift supervisors. (Dkt. 29-5.) The City of Taylor has

policies in place specifically relating to arrests and use of force. (Id.) In addition, each

 2 Because the Court grants summary judgment for Defendants on Plaintiff’s malicious

prosecution, unreasonable seizure, and false arrest and/or imprisonment claims, the Court

does not consider related failure to train claims. (Dkt. 1, at 8-9.) See Hansel, 30 F. Supp.

2d at 990 (granting summary judgment in favor of county on failure to train claim without

reaching merits because plaintiff failed to establish any deprivation of constitutional rights).

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officer testified that they have been trained in the use of force. (See, e.g., Dkt. 28-6, at 4

(testifying that Defendant Diggs-Taylor received hands-on use of force training when hired

in 2012).) The Court finds there is no genuine issue of fact on the issue of municipal liability

and that no reasonable jury could return a verdict for Plaintiff on this issue. Defendants’

motion for summary judgment on this claim is GRANTED, and the City of Taylor is hereby

DISMISSED from these proceedings.

D. Qualified Immunity 

The doctrine of qualified immunity provides that “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

determine whether an officer is entitled to qualified immunity, the court must first determine

whether the facts, viewed in the light most favorable to the plaintiff, show that a

constitutional violation has occurred. Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).

Then, if the court finds a constitutional violation, it must consider whether the violation

involves “clearly established constitutional rights of which a reasonable person would have

known.” Id. (quotation omitted).

There are genuine issues of fact regarding whether the use of force by Defendant

officers was necessary under the circumstances, and whether such force was employed

after Defendant was handcuffed. The law in the Sixth Circuit is settled with regard to both

of these issues. The right “to be free from excessive force” and from “force applied after the

subduing of a suspect” are both clearly established rights. Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 902 (6th Cir. 2004). Viewing the facts in the light most favorable to

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Plaintiff, there are genuine issues of fact regarding whether Defendant officers violated

Plaintiff’s clearly established constitutional rights. Thus, individual Defendants’ motion for

summary judgment on the issue of qualified immunity is denied. 

III. Conclusion

For the reasons stated, the Court hereby GRANTS IN PART and DENIES IN

PART Defendants’ motion for summary judgment. Specifically, the Court GRANTS

Defendants’ motion with respect to Plaintiff’s malicious prosecution, unreasonable

seizure, and false arrest and/or imprisonment claims (Counts II, III, IV, V), and those

claims are hereby DISMISSED. The Court also GRANTS Defendants’ motion on the

issue of municipal liability (Count VI), and the City of Taylor is hereby DISMISSED from

these proceedings with prejudice. The Court DENIES Defendants’ motion as to

Plaintiff’s claim of excessive use of force (Count I) and on the issue of qualified

immunity for the individually named Defendants. 

SO ORDERED.

S/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: February 5, 2016

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

record on February 5, 2016, by electronic and/or ordinary mail.

S/Carol J. Bethel 

Case Manager

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