NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0400n.06 No. 10-2567 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L ORI MARI E McCOL MAN, Plaintiff-Appellant,

v. ST. CL AI R COUNTY, ST. CL AI R COUNTY SHERI FF ’S DEPARTMENT, and SERGEANT HE RNANDEZ , Def endants, and DEPUTY GREG DO AN, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : GI BB ONS, GRI FF I N and DO NAL D, Circuit J udg es. JULIA SMITH GIBBONS, Circuit Judge. L ori McColman, a double amputee with below-the -knee prosthetics, sued St. Clair Cou n t y , its Sheriff’ s Depa rtment, and two St. Clair Coun t y p o lice office rs alleg ing that the office rs used excessive forc e and wer e g rossly neg lige nt in connec tion with her arr est for drunk driving

. McColman broug ht claims for depriva tion of her civil rig hts and use of excessive forc e in violation of 42 U.S.C. § 1983; assault and battery ; and g ross neg lige nce pursuant to Michig an Compil ed L aws § 691.1407. After the p ar ties stipulated to the dismiss al of all defe ndants except St. Clair County Sheriff’ s Deputy Gre g Doan, Doan moved for summary judgme nt. The district court g rante dDoan’ s motion, concluding that Doan did not use excessive forc e when he pulled McColman

into the back seat of his police vehicle afte r her arr est and that, even if he did, he was entitled to qualified im munity

. The dist rict court further held t hat Doan was not g rossly negl i gent in placing McColman sideway s in the back seat of the police vehicle and that Doan was not g rossly neg lige nt when he left McColman sitti ng on a g urney in the ho s p i t al emer g ency

room under the supervision of another office r. McColman appea ls. For t h e rea sons that follow, we a ffirm the judg ment of the district cour t. I. L ori McColman, a double, below-the -knee amputee who ambulates with prosthetics,

was arr ested for drunk drivin g o n Au g ust 28, 2008. The wee k befor e her drunk driving

arr est, police office rs wer e called to the house of McColman’s husband, Donald McColman, J r., to respond to a domestic dispute. Doan and Serg eant J oseph Her nandez responde d to the call and interviewe d McColman and her husband. Fr om these interviews, they lear ned that McColman had set the couple’ s marria g e cer tificate on fire and had pushed her husband, and that he knocked her down, causing her to fall, hit her head, and black out. McColman’s husband alleg es that she only prete n d ed t o b lack out, at which point he called 9-1-1. The office rs sepa

rate d the couple f

or the nig ht, sending McColman to her own home

. I n the ear ly morning hours of Au gust 28, 2008, Doan observe d McColman’s car

weaving betwee n lanes, pulled her over, and g ave her sever al field sobriety tests. McCo l m an p erf

ormed poorly on at least one of these tests. Doan then administered a breathaly zer test which re veale d that McColman’s blood alcohol level was .18, whic h was over the leg al l imit. He told McColman that she was being arr ested for drunk driving and direc ted her to place her h an d s behind her back. Doan then handcuf fed McColman. 2McColman testified that Doan place d the handcuf fs on her “[w]ay too tight[ly ,]” causing her to scre am out in pain, “I ’m hurting

. You’re hurting me, y ou’re hurting me.” She further testified t hat t he handcu ff s were so tight that they wer e cutting i nto the s kin on her wrists, but Doan did not adjust the handcuf fs i n response to her complaint. Doan testified that he chec ked the tightness of the handcuf fs by inserting a fing er along McColman’s wrist bone, deter mined that they

wer e not too tight, and le ft them as they wer e. Doan then sat McColman on the back se at of the pol ice car, a nd asked he r to scoot into the vehicle. McColman told Doa n she couldn’t “scoot” into the back seat beca use she neede d her hands t o p ro pel her. Doan then walked around to the other side of the car , opened the door, g rabbe d McColman by her upper arms, and pulled her acr oss the seat and into the car . McColman testified that she was “y anked

. . . acr oss the seat” in a manner that “ca used excruciating pain.” When Doan pulled McColman into the b ac k seat, one of her prosthetic leg s fell off, but Doan reattached it to her residual limb. At the time of her arr est, McColman weig hed appr ox imately 170 pounds. Doan testified that he left McColman sitti ng si d ew ay s o n the back seat because he thought that she would have difficulty g etting her prosthetic leg s around and underne ath the cag e of the vehicle. Doan beg an to drive McColman to the jail, but as a result of her sitti ng sideway s on the back s ea t , wh en Doan made a rig ht turn, McColman fell over and hit her head on the car seat or door. McColman testified that she blacke d out from the extreme pain she was fee ling in her wrists—from the handcuf fs—and from hitting her head. Doan hear d

a thud in the back seat, stopped the police car , and chec ked on McColman. McColman was breathing and moving, but not talking. Be cause McColman was unresponsive, Doan took her to the hospital. 3Doan radioe d for backup to meet him at the hospital, and Deputy Martin Stoy an was

dispatched to assist Doan. Doan testified that he radioe d for backup to avoid having to leave McColman unattended while he wa s doing paperw ork at the hos pital. When they rea ched the hospital, Doan and Stoy an helped McColman onto a g urney and an order ly took her into

an examination room. McColman testified that s h e wa s then left unattended in the examination room with t he police of fice rs standing outside the door of the room. At some point, McColman fell off the g urney and hit her rig ht elbow on t h e fl o or. She testified that one of

her pr osthetic leg s was slipping of f, and, as she was try

ing to hold it on with her other leg , she fe l l off the g urney afte r she lost her balanc e due to her hands being handcuf

fed be hind her ba ck. McColman testified that afte r her fall, she experience d excruciating pain in her wrists and hands, which wer e g oing numb, and in her rig ht elbow. Despite her complaints of pain, McColman was medically clea red to g o to jail, and Doan transporte d her there

. McColman’s handcuf fs wer e only

remove d when she rea ched the jail. McColman saw two doctors in the afte rmath of the arr est, one of whom testified that her pre- exis ting car

pal tunnel sy

ndrome was exacer

bated as a result of the way she was handcuf fed. II. Doan moved for summary judgme nt, and the d i s t ri ct court held a hear ing on the moti o n o n September 29, 2010. At the hear ing, Doan argued that McColman had never 1

Prior to the hear ing, the parties stipulated to the dismiss al with pr ejudice of all defe ndants 1 except Doan, and to the dismiss al of Count I V of the Complaint, which alleg ed that St. Clair County and the St. Clair County Sheriff’ s Depa rtment violated McColman’s civil rig hts in viol ation of 42 U. S

. C

. § 1 9 83 by failing to proper ly supervise, monitor, and train their police office rs and b y 4pled a claim that Doan used excessive forc e in handcu ff i ng her. Although her complaint contained alleg ations of excessive forc e, it did not alleg e that Doan subjected her to excessive forc e by handcuf fing her too tightly

. The court ag ree d that there was no excessive forc e handcuf

fing claim pled in the complaint and that such a claim was there fore not befor e the court. McColman argued that Doa n was on notice , throug h discovery , that McColman

was pursuing an excessive forc e claim rela ted to her handcuf fing and orally moved to amend the complaint to alleg e this claim. The district court declined to g rant the motion orally , direc ting McColman’s counsel to file a motion if he wished to amend t h e complaint. McColman’s counsel indicated that he would move for leave to amend. Howeve r, more than

one month later, when the district court g rante d Doan’ s motion for summary judgme nt, McColman’s counse l stil l had not moved for le ave to amend the complaint. I n its opinion g ranting Doan’ s motion for summary judgme nt, the district court held that McColman’s excessive forc e handcuf fing claim was not befor e the court; that Doan did not use excessive forc e when he pulled McColman acr oss the back seat of the police car , and that even if he did, he was entitled to qualified immunit y ; that Doan was n o t gro ssly neg lige nt when he situated McColman sideway s in the back seat or when he left McColman under Stoy an’s supervision at the hospital; and th at Doan was entitled to g overnme ntal immunit y on the state law assault and battery claims. Acc ording ly , the district court enter ed summary j u d gm en t in Doan’ s favor

. McColman appea led but abandone d her assault and battery claims on appe al. III.

establishing a

pattern a nd prac tice of violating their citizens’ constitutional rights. 5W e revie w a district court’s g rant of summary judgme nt de novo . Alspaugh v.

McConnell , 643 F.3d 162, 168 (6th Cir. 2 011). “Summary judgme nt is appropr iate if the pleading s, depositions, answe rs to interrog atories, and admissions on file, toge ther with the af fi davits, if any , ‘show that there is no g enuine issue as to any materia l fac t and that t h e movant is entitled to a j u d gm en t as a matter of law.’” Binay v. Bettendorf , 601 F.3d 640, 646 (6th Cir. 2010) (quoting Fe d. R. Civ. P . 56(c) ). The moving par ty bear s the burden of proving that no g enuine issue of m at er ial fac t exis ts, but it can discharg e that burden by showing “that there is an absenc e of evidence t o s u p p o rt the nonmoving party ’s case .” Benne tt v. C ity of Eastpointe , 410 F.3d 810, 817 (6th Cir. 2005) (internal quotation marks omitted). I n revie wing a summary judgm en t m o tion, we view the evidenc e and the infere nces there from “in the light most favor able t o the non-moving party .” Id. (citing Matsushita Elec. Indus., Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). A. McColman argues t hat t he complaint proper ly pled an ex cessive f orce claim base d on handcuf

fing . We do not ag ree . “[T] he pleading sta n dard Rule 8 announce s does not require detailed fac tual alleg ations, but it demands more than an unadorne d, the-de fenda nt-unlawfully -har

med-me

acc usation.” Ashcroft v. Iqbal , 129 S. Ct. 193 7 , 1 9 4 9 (2009) (interna l quotation marks omit ted). “A pleading that offe rs labels and conclusions or a formulaic rec itation of the elements of a cause of action will not do.” Id. (interna l quotation marks omitted). “Nor does

a complaint suffice if it tender s naked as sertions devoid of further fac tual enhanc ement.” Id. (interna l quotation marks and alteration omitted). “[W ]here the well-plea ded fac ts do not permit t h e court to infer more than the mere possibili ty of misconduct, the complaint has 6alleg ed—but i t has not shown—that the pl eade r i s entitled to reli ef

. ” Id

. at 1950 (interna l quotation marks and a lteration omitted). McColman cites para g raphs 10–11 and 22–23 of her complaint as those that contain

s ufficie nt fac tual and leg al alleg ations to plead her excessive forc e handcuf fing claim. Parag raph 10 states, in full, “Tha t the office rs deter

mined that an arr est should be made for operating while intox icated. The Plaintiff was handcuf fed, hands behind her back, and then order ed to g et into the police vehicle.” (R. 1, at ¶ 10.) Parag raph 11 mere ly alleg es that beca use McColman is a double amputee she could not g et into the po l i ce ca r “w i thout assistan ce wh i l e h er hands wer e handcuf fed behind her back.” ( Id. , at ¶ 11.) These para g raphs descr ibe the fac t that McColman was handcuf fed, but nothing in these para g raphs

can be co nstrued as an alleg ation that Doan used excessive forc e in placing handcuf fs too tightly on McColman’s wrists. Parag raphs 22 and 23 of t he complaint alleg e that Doan violated 42 U.S.C. § 1983 and the Constit ution by using excessive forc e and that a rea sonabl e o ff i ce r i n his position would have known he was violating McColman’s constitutional rig hts. ( Id. , at ¶¶ 22–23.) These pa rag raphs do not eve n mention handcuf fing but merely

rec ite the leg al eleme nts of an excessive f

orce claim. The well-plea ded fac ts of McColman’s complaint do n o t permit an infere nce that Doan violated 42 U.S.C. § 1983 by using excessive forc e in handcuf fing McColman too tightly

. Acc ording ly , the district court corre ctly conclude d that McColman failed to plead an excessive f

orce handcuf

fing claim. Fur ther, the handcuf

fing claim was no t tried by consent, as McColman argues. Fe dera l Rule of Civil Procedur e 15(b) (2) pr ovides: 7When an issue not raised by the pleading s is tried by

the par ties’ express or implied consent, it must be trea ted in all respe cts as if raised in the pleading s. A party may move—at any time, even afte r judgme nt—to am en d the pleading s to confor

m them to the evidence and to raise a n unpleade d issue. But fa ilure to amend doe s not affe ct the re sult of the trial of that issue. By its plain terms, Rule 15(b)( 2) onl y applies t o claims that are tried, and this case

was disposed of o n s u m m ary judgme nt. Fur ther, Doan did not consent to try ing the handcuf fing claim—he objected to the claim in both his motion for summary judgme nt and at oral arg ument on that motion. Cf. Siler v. W ebber , 443 F. App’x 50, 58 (6th Cir. 2011) (holding that an issue cannot be tried by the parties’ consent pursuant to Rule 15(b)( 2) wher e one of the parties oppose s trial by moving f or summary

judgme nt). The fa ct t h at Doan would not have been prejudiced or surprised by an amendment is i rre levant, g iven that McColman never moved for leave to amend her complaint. The district court prope rly

declined to c onsider a c laim that was not pled.

B. McColman next arg ues that the wa y in which Doan pulled her across the back se at of the police vehicle constituted excessive forc e in v i o l at i o n of 42 U.S.C. § 1983. We conclude that Dona’ s use of for ce w as re asonable

. The Four th A mendment prohibits of fice rs from using excessive forc e in the course of making an arr est. Graham v. Connor , 49 0 U.S. 386, 394–95 (1989). “To deter mine whether a constitutional violation based on excessive forc e has occur red, this Court applies the objective- rea sonablene ss standard, which depends on the fac ts and circ umstanc e s of eac h

case viewed from the perspe ctive of a rea sonable office r on t h e s ce n e and not with 20/20 hindsight.” Binay , 601 F.3d a t 647 (internal quotations marks omitted).

8Fa ctors rele vant to the rea sonablene ss inquiry include “the sever ity of the crime at

issue, whether

the suspect pose s an immediate thre at to the s afe ty of the off icer s or others, and whether he is actively resisting arr est or attempting to evade arr est by flig ht.” Graham , 490 U.S. at 396. As we ha ve explained: Not ever y push or shove, even if it may later seem unnece ssary in the peac e of a judge ’s chamb er , v i o lates the Four th Amendment. The calc ulus of rea sonablene ss m u s t em b ody allowanc e for the fac t that police office rs are o ft en forc ed to make split-second judgme nts—in circ umstances that ar e tense, uncer

tain, and rapidly evolving—abou t the amount of forc e that is nece ssary in a par ticular situation. Dunigan v. Noble , 390 F.3d 486, 493 (6th Cir. 2004) (empha sis omitted) (quoting Graham , 490 U.S. at 396–97). I n g ranting Doan’ s motion for summary judgme nt, the district court noted that McColman was arr ested for driving while under the influence of alcohol, “an unquestionably serious crime which can, under cer tain circ umstances, lead to a volatile situation.” The court acknowledg ed that McColman did not actively resist arr est and that the manner i n wh i ch Doan pulled her into the car cause d her prosthetic leg to f all off and cause d bruising on her

arms. Howeve r, the di s t rict court conclude d that Doan’ s pulling McColman into the back seat was not objecti v ely unrea sonable beca use his previous encounte r with her afte r her domestic dispute apprised him of he r ag g ressive be havior, a nd he had to use some forc e to g et a woma

n of her weig ht into the police ve hicle. Doa n did not use “g ratuitous violence” or “gr atuitous forc e” to g et M cColman into the car. The court also conclude d t h at ev en if Doan’ s use of for ce w as objec tively unrea sonable, he was e ntitled to qualified immuni ty

.

9The district court’s analy sis is sound. Doan knew that McColman had previously set

a fire in her husband’s home, sug g esting she was inclined toward dang erous behavior when she was upset. He also knew that she had been driving w hile intox icated. T he seve rity of the crime justified keeping McColman in handcuf fs afte r she was arr ested, espec ially g iven Doan’ s knowledg e that McColman could pres en t a t hreat to the safe ty of others. See Graham , 490 U.S. at 396. Thus, Doan’ s decision not to remove McColman’s handcuf fs was objectively

rea sonable. McColman told Doan she could no t s coot i nto the back seat of the police car without the use of her hands. Thus, Doan, having made a rea s o nable decision not to remove McColman’s handcuf fs, had to apply some forc e to g et her into the back seat so that he could close the door and transport her to jail. See Graham , 490 U.S. at 396 (holding that a g overnme nt office r has the rig ht to use some deg ree of phy sical coer cion to eff ect an arr est). Gra

bbing her by her upper arms and pulling McColman acr oss the seat

was not a g ratuitous use of forc e, even if it did result in some minor bruising to McColman’s

arms. See Miller v. Sanilac Cnty. , 606 F.3d 240 , 252 (6th Cir. 2010) (“I n deter mining whether there has been a violation of the Four th Amendment, we consider not the ‘extent of the injury inflicted’ but whether an office r subjects a detainee to ‘g ratuitous violence.’ ” (quoting Morrison v. Bd. of Trs. of Gree n Twp. , 583 F.3d 394, 407 (6th Cir. 2009)))

. Doan applied forc e sufficie nt, but not g reater th an n ec es sary , to g et McColman into the vehicle without removing her handcuf fs. Acc ording ly , Doan did not use excessive forc e in pulling McColman acr oss the back se at of the ve hicle. C. McColman next argues that the dis t ri ct co u rt err ed in holding that Doan was not g rossly neg lige nt in placing McColman in the back seat of the police vehicle in a manner 10that allowed her t o fall and hit her head when he turned a corner . S h e also argues t hat t he

district court err ed in concluding that Doan was not g rossl y n eglig ent in leaving her unattended on the gurne y at t he hospi tal, from which she fell while s he was try ing to keep one prosthetic le g on with the other. Under Michig an’s Gover

nmental I mmunity Act, Mich. Comp. L aws § 691.1407, “a g overnme ntal employ ee is not l iable in tort for pe rsonal injuries so long as the e mploy ee’ s ‘conduc t does not amount to g ross neg lige nce that is the proxi mat e ca u s e o f the injury or damag e.’” Oliver v. Smith , 715 N.W.2d 314, 317 (Mich. Ct. App. 200 6 ) (q u o t i n g Mich. Comp. L aws § 691.1407(2)( c))

. Under Michig an law, a police office r may be held liable in tort only if “the office r has utiliz ed wanton or malicious conduct or demonstrated a rec kless indiffer ence to the common dictates of humanity .” Benne tt v. K rakowski , __ F.3d __, No. 10-2455, 2011 WL 5604055, at *6 (6th C i r. Nov. 18, 2011) (interna l quotation marks omitted). Fur

ther, tort liability will not lie unless the office r’s conduct “is the proxi mate

cause of the injury or damag e.” Livermore ex rel Rohm v. Lubelan , 476 F.3d 397, 408 (6th Cir. 2007) (inter n al quotation marks omitted). “[T] he Michig an Supreme Court [has] define d ‘the proxi mate cause ’ under § 691.1407(2)(c) to mean ‘the one most immediate, eff icient, and direc t cause prec eding an injury .’” Id. (quoting R o b i n s o n v. City of Detroit , 613 N.W.2d 307, 317 (Mich. 2000)). Viewing the fac ts in the light most favor able to McCol m an , Doan was not g rossly neg lige nt in placing McColman sideway s in the back seat of the police car . Do an p l ace d McColman sideway s beca us e h e believed she would have difficulty g etting her prosthetic leg s underne ath the cag e if he turned her fac ing forwa rd. McColman did not tell D oan she

was unstable in the position in which he situated her. There is no evidenc e in the rec ord that 11Doan was driving at an excessive rate of speed or rec klessly when McColman fell over and

hit her hea d. Doan’ s response when McColman hit her head undermines any claim that Doan’ s conduct wa s “wa

nton or malicious

. . . or demonstrated a rec kless indiffer ence to the

common dictates of humanity .” Benne tt , 2011 WL 5604055, at *6 (interna l quotation marks omitted). When D oan hear d a thud in the back seat, he stopped the police car and chec ked on McColman. McColman was bre athing and moving but not talking. Doa n immediately took McColman to the hospital beca use she had fallen over and was unresponsive. At most, Doan’ s failure to anticipate that McColman would fall over and hit her head beca use she was positioned sideway s was g arde n-var iety neg lige nce, not g ross neg lige nce. Acc ording ly , the district court corr ectly conclude d that Doan was not g rossly neg lige nt in placing McColman sideway s in the back seat of the police car and that he was there fore entitled to g overnme ntal immunit y . Simi larly , Doan was not g ro s s l y neg lige nt in leaving McColman under Stoy an’s supervision when he went to fill out hospital paper work and paper

work nece ssary to obtain

a war rant for a blood draw

. Doan anticipated that he would need backup at the hospital, called for backup, and was met at the hospital by Stoy an. McColman testified that she was left unattended in the ex amination room with t h e police officer s standing outside the door of the examination room. At some point, McColman fell off the g urney and hit he r rig ht elbow on the floor. McColman testified that one of her prosthetic leg s was slipping off, she

was try ing to hold it on with her other l eg, and she fell off the g urney afte r she lost her balanc e due to he r hands be ing ha ndcuff ed behind he r bac k.

12Crediting McColman’s version of events, as we must at the summary judgme nt stag e,

Doan is still entitled to g overnme ntal immunit y beca use Doan exercised due car e in asking Stoy an to supervise McColman while he filled out paper work. Even if Stoy an failed to stay in the room with McColman, and she was there for e left unattended, it was rea sonable for Doan to ask another office r to supervise an arr estee while he could not. There is no evidenc e in the rec ord that Doan knew or should have known that Stoy an would not watch McColman at all times. On these fac ts, Doan did not eng ag e in conduct that was “wa nton or malicious

. . . or d em o n s t ra t ed a rec kless indiffer ence to the common dictates of humanity .” See Benne tt , 2011 WL 5604055, at *6 (interna l quotation marks omitted). Moreove r, Doan’ s ac t i o n s wer e not the proxi mate cause of McColman’s fall and conseque nt injury

. See Mich. Comp. L aws § 691.1407(2)( c). Acc ording to McColman’s own testimony , she only

fell bec ause she was try ing to keep one prosthetic leg on w ith the other, a nd lost her balanc e beca

use her ha

nds were handcuf

fed be hind her ba ck. The most direc t cause of McColman’s injury was her decision to use one of he r prosthetic le g s to try to keep on the other, which was falling off. Be cause McColman’s actions, not Doan’ s, wer e the most direct ca

use of her fall and injury , Doan wa s entitled to gove rnmental immunity

. See Live rmore , 476 F.3d a t 408. IV. For the fore g oing r easons, we aff irm the district court’s judg ment.

13