1

 Defendant North Oakland Medical Center was dismissed with prejudice. (Doc.

11, 22).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MACK TAYLOR,

Plaintiff,

v.

OAKLAND COUNTY DEPUTY SHERIFF

POWELL, Badge 459, NURSE (JANE DOE)

BROWN and THE NORTH OAKLAND

MEDICAL CENTER, in their official capacities

and individually,

Defendants.

_____________________________________/

Case No. 09-10199

HON. MARIANNE O. BATTANI

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANT POWELL’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the Court is Defendant Oakland County Sheriff Steven Powell’s Motion for

Summary Judgment under Federal Rule of Civil Procedure 56. (Doc. 16). Plaintiff Mack

Taylor’s complaint alleges Defendants’ violated his state law and constitutional rights by

drawing his blood without his consent after Powell arrested him for driving while intoxicated.

(Doc. 1).1

 Plaintiff has premised liability on 42 U.S.C. § 1983, negligence, gross

negligence, intentional infliction of emotional distress (“IIED”), and other state law

intentional tort theories. (Doc. 1 at 4-9). Defendant Powell seeks summary judgement on

Plaintiff’s entire complaint. At the hearing on the motion, Plaintiff abandoned all state law

claims, as well § 1983 claims based on alleged violations of procedural and substantive
2

due process. The Court GRANTS summary judgment to Defendant Powell on those

claims. Only a § 1983 claim predicated on an alleged violation of the Fourth Amendment

remains. 

For the reasons that follow, the Court declines to apply the doctrine of collateral

estoppel. There are genuine issues of material fact on Plaintiff’s Fourth Amendment §

1983 claim that preclude the affirmative defense of qualified immunity. Accordingly, the

Court DENIES Defendant’s motion for summary judgment on this claim. 

II. STATEMENT OF FACTS

On May 18, 2006, Plaintiff Mack Taylor drove his car away from a bar after drinking

a beer. (Doc. 21 at 2) Shortly after leaving, Defendant Stephen Powell pulled Taylor over

after observing the vehicle’s erratic movements. (Doc. 1 at 2). The traffic stop resulted in

a chemical breath test and a determination by Powell that Taylor was legally intoxicated.

(Doc. 21 at 3). Defendant Powell arrested Taylor, and transported him to North Oakland

Medical Center for a blood draw to determine his blood alcohol content. (Doc. 21 at 3).

According to Taylor, no conversation occurred between him and Defendant Powell during

the drive to the hospital. (Doc. 21 at 3). Upon arrival, he asked for a lawyer. (Doc. 21 at

3). Plaintiff testified that Defendant did not ask him to consent to a chemical blood test for

alcohol, nor read him his rights about the testing procedures, nor explain the consequences

of a refusal to consent. (Doc. 21 at 3). Defendant testified he did. (Doc. 21 Ex. 3 at 91).

Defendant Powell handcuffed Taylor to a hospital bed and asked Defendant Nurse to draw

his blood. (Doc. 21 Ex.1 at 65-66). Powell testified that Taylor gave nurse Brown

permission to draw his blood. (Doc. 21 Ex. 3 at 89). Plaintiff Taylor renewed his request

for a lawyer and requested an additional, non Breathalyser, blood alcohol test. (Doc. 21
3

at 3). After the blood draw, Powell booked Taylor at the Oakland County jail and released

eight hours later. (Doc. 21 at 3).

The State of Michigan charged Taylor with driving while intoxicated. He filed a

motion to suppress the blood evidence in the criminal case. At the evidentiary hearing on

the motion, his counsel stipulated that the only issue was whether he gave consent for the

blood draw. (Doc. 21 at 4).

Plaintiff Taylor testified on the consent issue during the hearing. He stated that he

was not given any documents to read at the hospital, nor asked to consent to the blood

draw. (Doc. 21 at 5, Ex. 2 at 24-26). Plaintiff told Defendant Powell “if I was going to take

any test I wanted my attorney present.” (Doc. 21 at 5, Ex. 2 at 28). Taylor denies that he

failed to express his refusal to have his blood drawn. (Doc. 21 at 5). When asked what he

did to alert someone that he did not want to have his blood drawn, he answered, “Deputy

Powell knew I wasn’t comfortable with the whole situation from the jump.” (Doc. 16 at 5,

Ex. C at 29). 

Defendant Powell testified at the same hearing. He testified that he discussed

Taylor’s chemical testing rights while the two sat in a parked squad car in the parking lot

and that this was before they entered the hospital for the test. (Doc. 16 at 4, Ex. C at 13).

Plaintiff testified Defendant Powell read something to him at the hospital. (Doc. 16 at 5, Ex.

C at 24). However, in his deposition for this civil case, Defendant Powell testified he

discussed chemical tests while en route to the hospital. (Doc. 21 at 6, Ex. 3 at 83-84).

Powell testified Taylor did not refuse to take the test. (Doc. 16, Ex. C at 8-9). Defendant

Powell confirmed Plaintiff asked for a second blood alcohol test while leaving the hospital.

(Doc. 16 at 5, Ex. C at 10).
4

The state court denied Taylor’s motion to suppress and ruled that ample testimony

supported the finding that he consented to a warrantless blood draw. (Doc. 16 at 6, Ex. C

at 36). The case never went to trial. It was dismissed without prejudice because Powell

and Defendant Nurse Brown failed to appear as state witnesses. (Doc. 21 at 3). The case

was subsequently re-filed and dismissed again, this time with prejudice, because the

witnesses again failed to appear. (Doc. 21 at 3). 

III. STANDARD OF REVIEW

Summary judgment is appropriate only when there is “no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

Pro. 56(c)(2). The central inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,

(1986). Rule 56(c) mandates summary judgment against a party who fails to establish the

existence of an element essential to the party's case and on which that party bears the

burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The Court “must lend credence” to the non-moving party’s interpretation of the disputed

facts. Marvin v. City of Taylor, 509 F.3d 234, 238 (6th Cir. 2007) (citing Scott v. Harris, 127
5

S.Ct. 1769, 1775 (2007)). The non-moving party may not rest upon its mere allegations,

but rather must “set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P.

56(e). The mere existence of a scintilla of evidence in support of the non-moving party's

position will not suffice. Rather, there must be evidence on which the jury could reasonably

find for the non-moving party. Hopson v.DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir.

2002).

IV. ANALYSIS

Defendant Powell argues that Plaintiff Taylor is collaterally estopped from contesting

his consent to the blood draw because the issue was previously litigated to a final

determination at the state court evidentiary hearing. Alternatively, Powell argues Taylor

consented to the blood draw pursuant to Michigan’s implied consent statute, thus no

violation of the Fourth Amendment, therefore no § 1983 claim. As an additional alternative

argument, Powell contends he is entitled to the affirmative defense of qualified immunity.

A. Collateral Estoppel

Defendant argues collateral estoppel applies because the issue of consent was

previously litigated at the state court evidentiary hearing where the court found that Taylor

consented to the blood draw. Powell contends Taylor had a “full and fair opportunity to

litigate” the issue, notes he was represented by counsel, and the “state court considered

and ruled on” the consent issue. In sum, Powell argues the elements of collateral estoppel

exist regarding the issue of Plaintiff’s consent to the blood draw. 
2

 The term “collateral estoppel” is synonymous with the “issue preclusion.”

6

Federal courts must apply state collateral estoppel2 law when determining whether

a state court's judicial determination has preclusive effect in a § 1983 action. Haring v.

Prosise, 462 U.S. 306, 313 (1983); Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir.

2001). The party invoking collateral estoppel bears the burden of proving the doctrine

applies. Central Transport, Inc. v. Four Phase Systems, Inc., 936 F.2d 256, 260 (6th

Cir.1991). The doctrine of collateral estoppel is intended " ‘to relieve parties of the cost and

vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent

decisions, encourage reliance on adjudication....' " Detroit v. Qualls, 454 N.W.2d 374, 382

n. 30, (Mich. 1990) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). Under Michigan

law, “[a] court must apply issue preclusion when (1) the parties in both proceedings are the

same or in privity, (2) there was a valid, final judgment in the first proceeding, (3) the same

issue was actually litigated in the first proceeding, (4) that issue was necessary to the

judgment, and (5) the party against whom preclusion is asserted (or its privy) had a full and

fair opportunity to litigate the issue.” United States v. Dominguez, 359 F.3d 839, 842 (6th

Cir.2004) (citing People v. Gates, 452 N.W.2d 627, 630-31 (Mich. 1990)). Relatedly,

"cross-over estoppel" exists "where an issue adjudicated in a civil proceeding is claimed

to be precluded in a subsequent criminal proceeding, or vice versa." Gates, 452 N.W.2d

at 630. Under Michigan’s collateral estoppel law, "[c]rossover estoppel ... is permissible."

Barrow v. Pritchard, 597 N.W.2d 853, 856 (Mich. Ct. App. 1999). 

Michigan courts have expanded upon the five factors set forth in Gates. Although

the Gates opinion requires the parties to be the same or in privity, the Michigan Supreme
7

Court recently rejected the mutuality requirement for defensive use of collateral estoppel.

Monat v. State Farm Ins. Co., 677 N.W.2d 843, 852 (Mich. 2004). Additionally, the court

acknowledged Michigan’s collateral estoppel law has rejected the mutuality requirement

in the “cross-over” context, i.e., criminal to civil. Id. at 850 (citing Knoblauch v. Kenyon, 415

N.W.2d 286 (Mich. Ct. App. 1987). 

Elaborating on the “full and fair” requirement, the Monat court instructed that, in

deciding whether to apply the doctrine, a court should look to the factors set forth in §§

28-29 of the Restatement (Second) of Judgments. Id. at 847 n. 2. The court explained that

"[t]he general rule permits relitigation when '[t]he party against whom preclusion is sought

could not, as a matter of law, have obtained review of the judgment in the initial action....'

" Id. at 847 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 28(1)) (italics in original). The

court remarked that a “ ‘full and fair opportunity to litigate' normally encompasses the

opportunity to both litigate and appeal...." Id.

In accord with Monat, the Michigan Court of Appeals recently explained that a

decision is a “final judgment” for collateral estoppel purposes “when all appeals have been

exhausted or when the time available for an appeal has passed.” Leahy v. Orion Tp. 711

N.W.2d 438, 441 (Mich. Ct. App. 2006); see also, Gursten v. Kenney, 134 N.W.2d 764, 766

(Mich. 1965). With respect to the “necessary for judgment” factor, the courts have held “[t]o

be necessarily determined in the first action, the issue must have been essential to the

resulting judgment; a finding upon which the judgment did not depend cannot support

collateral estoppel.” Bd. of Cnty. Rd. Comm'rs. for the Cnty. of Eaton v Schultz, 521

N.W.2d 847, 850 (Mich. Ct. App. 1994) (citing Qualls, 454 N.W.2d at 382). Furthermore,

collateral estoppel will apply to an issue only if it is a basis of the former judgment and is
8

"clearly, definitely, and unequivocally ascertained." Ditmore v. Michalik, 625 N.W.2d 462,

467 (Mich. Ct. App. 2001). 

Two of the five elements, “privity” and “same issue,” are not in contention, thus

favoring the use of the doctrine. The Michigan Supreme Court has rejected the mutuality

requirement for the defensive use of collateral estoppel. Monat, 677 N.W.2d at 852. The

fact that Powell was not a party in the prior state court proceeding is no bar to collateral

estoppel here. Additionally, the same issue, whether Taylor gave consent, is being litigated

in this Court. However, as explained below, Defendant does not carry the burden on the

remaining elements. 

Turning to the “final judgment” element, Defendant’s argument necessarily implies

that the ruling on the consent issue at the evidentiary hearing qualifies as a “final

judgment.” The “final judgment” in the matter was the dismissal of criminal charges. The

dismissal prevents practical review of the pretrial determination by an appellate court, and

thus the consent ruling cannot acquire “final judgment” status. See, Leahy v. Orion Tp.,

711 N.W.2d at 441. To hold otherwise would create a policy where when one party has an

unfavorable pretrial ruling, but is ultimately successful in the underlying case, that party is

pressured into appealing the pretrial ruling to escape preclusive effect in a future case. The

Michigan courts have explained such a policy is “ill-advised” and “one that is inconsistent

with the doctrines of both res judicata and collateral estoppel.” Schultz, 521 N.W.2d at 851.

Furthermore, “[r]equiring the prevailing party to appeal unfavorable rulings would foster

excessive litigation, vexation, and waste judicial resources....” Id. Here, Taylor received

an unfavorable ruling on the consent issue in his criminal case, but since he ultimately

prevailed, had no incentive and no obligation to appeal that court's decision on the consent
9

issue. Unless, of course, issue preclusion law requires him to do so. After review, the

Court finds that Michigan’s preclusion law does not.

Since the “final judgment” in Taylor’s prior criminal case was a dismissal based on

the failure of the witnesses to appear, the consent determination was not “necessary to the

judgment.” See, Gates 452 N.W.2d at 630-31 . The consent determination made in the

pretrial hearing was not essential to the resulting judgment of dismissal. As the judgment

did not depend, in any way, on the result of the motion to suppress hearing, the consent

determination has no preclusive effect.

Additionally, Taylor did not have a “full and fair” opportunity to litigate the consent

issue in the state criminal court. The Michigan Supreme Court stated that in deciding

whether there has been a “full and fair” opportunity to litigate, a court should consult

Restatement (Second) of Judgments §§ 28-29. Monat, 677 N.W.2d at 847 n. 2. The

United States Supreme Court provides additional guidance:

Determining whether a [party] has had a full and fair chance to litigate [an

issue] in an earlier case is of necessity not a simple matter [because] ... as

so often is the case, no one set of facts, no one collection of words or

phrases, will provide an automatic formula for proper rulings on estoppel

pleas. In the end, [the] decision will necessarily rest on the trial courts' sense

of justice and equity.

Blonder-Tongue Laboratories, Inc v. Univ of Illinois Foundation, 402 U.S. 313, 333-334

(1971)). 

As discussed in Monat, the ability of a party to obtain appellate review is critical in

the fairness analysis. See, 677 N.W.2d at 847. Taylor’s ability of appellate review of the

consent issue was, as a practical matter, unavailable. See, RESTATEMENT (SECOND) OF

JUDGMENTS § 28(1). The remedies sought in a §1983 action are incompatible with the
10

goals of a motion to suppress hearing in a state criminal case. See, Id. at § 29(1). Also,

this forum affords Taylor more procedural opportunities, most important of which, is the

ability to present the consent issue to a jury. See, Id. at § 29(2). Moreover, the Court is

concerned that Defendant’s proffered use of collateral estoppel is not in compliance with

overarching due process concerns.

Defendant cites Gaddis v. Redford Tp., 188 F.Supp.2d 762 (E.D. Mich. 2008) in

support of issue preclusion. This case is readily distinguishable. In Gaddis, the court

collaterally estopped a § 1983 plaintiff from challenging the existence of probable cause for

arrest, because that issue was fully and fairly litigated at the preliminary examination in his

criminal case - a case in which Gaddis had a full trial with detailed appellate review,

resulting in a judgment notwithstanding the verdict. Gaddis had an opportunity to fully

litigate his probable cause issue at the trial and appellate court levels. Thus, the district

court, in a one sentence analysis, found it fair to estopp him from relitigating the probable

cause issue in a civil action. 

B. A Genuine Issue of Material Fact Exists in Plaintiff’s Fourth Amendment

§ 1983 Claim

Defendant argues Plaintiff impliedly consented to the blood draw pursuant to

Michigan’s implied consent statute. See, Mich.Comp.Laws 257.625c. While the statute

implies consent to a blood draw, that statute expressly provides such consent is revocable.

Id. If Taylor revokes consent, a court order is required before Powell administers a blood

draw. Id. Plaintiff has shown a genuine issue of material fact about whether he revoked

consent to the blood draw.
11

To make out a claim brought under 42 U.S.C.§ 1983, a plaintiff must show that the

defendant, while acting under color of state law, deprived him of a right secured by the

Constitution or laws of the United States without due process of law. Neuens v. City of

Columbus, 303 F.3d 667, 670 (6th Cir. 2002). To survive summary judgment, Plaintiff must

(1) demonstrate a genuine issue of material fact as to the deprivation of a federal right and

(2) show that a person acting under color of state law caused the deprivation. Johnson v.

Karnes, 398 F.3d 868, 873 (6th Cir. 2005).

The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated, and [that] no Warrants shall issue, but upon probable cause ....” U.S.

Const. Amend. IV. The Supreme Court has stated there is a general requirement that a

search warrant be obtained as a means to ensure a search is reasonable. Chimet v.

California, 395 U.S. 752, 762 (1969). Warrantless searches are permissible if consent is

freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). To

determine whether a person freely gave consent, a reviewing court must examine the

totality of circumstances. U.S. v. Mendehall, 446 U.S. 544, 557 (1980).

The Michigan Legislature has adopted Fourth Amendment protections in its implied

consent statute, Mich.Comp.Laws 257.625c. The statute provides that a person is

considered to have consented to chemical tests of his or her blood, breath or urine (a

“search” for Fourth Amendment purposes) if arrested for certain violations, such as

(applicable here) driving under the influence of alcohol. 

Implied consent is withdrawn if the arrested person refuses to take the test. The

Michigan Legislature expressed a clear intent to protect the rights of its citizens by requiring
12

that if an arrested person refuses to consent to a voluntary test, a court order must be

obtained before the test occurs: “[i]f he or she refuses the request of a peace officer to take

a test described in subparagraph (i) (blood, urine, or breath test), a test shall not be given

without a court order....” Mich.Comp.Laws. 257.625a(6)(b)(iv).

Here, Defendant admits he was acting under the color of law. (Doc. 6 at ¶ 4).

Plaintiff’s survival on this motion turns on whether he can show the Court a fact issue with

respect to the deprivation of a right secured by the U.S. Constitution. In the context of a

§ 1983 claim, the Supreme Court has stated the right to be free from an unreasonable

search is clearly established. California v. Hodari, 499 U.S 621, 624-25 (1991). Plaintiff’s

main factual allegation is that he did not consent to the blood draw. A non consensual,

warrantless search, absent exigent circumstances (not argued by Defendant) is an

unreasonable, and therefore unconstitutional search. Defendant relies solely on the

consent exception to the search warrant requirement to justify the blood draw. Thus, the

§ 1983 claim turns on whether Plaintiff consented to the blood draw. 

Except for the initial traffic stop and arrest, the parties disagree on almost all

additional facts in the case. Most importantly of which are the facts surrounding whether

Plaintiff gave consent for the blood draw or, phrased alternatively, whether he properly

revoked the implied consent given under the statute. Plaintiff’s factual allegations, along

with the fair inferences that follow, show the Court that a reasonable jury could believe that

Plaintiff did not consent to the blood draw. The Court notes the following genuine issues

of material fact:

(1) Plaintiff testified Defendant Powell did not ask him to consent to a chemical

blood test for alcohol, nor read him his rights regarding the testing
13

procedures, nor explain the consequences of a refusal to consent. (Doc. 21

at 3). Defendant testified he did all these things. (Doc. 21 Ex. 3 at 91) 

(2) Defendant testified that Plaintiff gave nurse Brown permission to draw his

blood. (Doc. 21 Ex. 3 at 89). Plaintiff testified he was not asked to consent

to the blood draw. (Doc. 21 at 5, Ex. 2 at 24-26). 

(3) Plaintiff denied that he failed to express his refusal to have his blood drawn.

(Doc. 21 at 5). Defendant testified Plaintiff did not refuse to take the test.

(Doc. 16, Ex. C at 8-9). 

Plaintiff has shown there is a genuine issue of material fact about whether Plaintiff

consented to the blood draw, or revoked implied consent under the statute. Therefore, the

Court denies Defendant’s motion for summary judgment on the Fourth Amendment § 1983

claim.

C. Qualified Immunity

Defendant asserts he is entitled to qualified immunity. Qualified immunity protects

state officials sued in their individual capacities from civil damages "insofar as their conduct

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

person would have known." Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In resolving the issue of qualified

immunity, courts engage in a two-step decisional process: “defendant enjoys qualified

immunity on summary judgment unless the facts alleged and evidence produced, when

viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find

that: (1) the defendant violated a constitutional right; and (2) the right was clearly

established.” Jefferson v. Lewis, 594 F.3d 454, 459 (6th Cir.2010) (citing Morrison v. Board

of Trustees of Green Tp., 583 F.3d 394, 400 (6th Cir.2008)). The Supreme Court has

explained “[t]he judges of the district courts and the courts of appeals should be permitted
14

to exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular

case at hand.” Pearson, 129 S.Ct. at 818. The Sixth Circuit has included a third inquiry to

“increase the clarity” of the above analysis, a court must additionally determine “whether

the plaintiff offered sufficient evidence to indicate that what the official allegedly did was

objectively unreasonable in light of the clearly established constitutional rights.” Jefferson,

594 F.3d at 460 (citing Floyd v. City of Detroit, 518 F.3d 398, 405 (6th Cir. 2008).

“A court should not grant summary judgment on the issue of qualified immunity if

there exists a genuine issue of material fact, 'involving an issue on which the question of

immunity turns, such that it cannot be determined before trial whether the defendant did

acts that violate clearly established rights.' " Flint ex rel. Flint v. Kentucky Dept. of

Corrections, 270 F.3d 340, 346 (6th Cir.2001) (quoting Poe v. Haydon, 853 F.2d 418,

425-426 (6th Cir.1988)). The plaintiff bears the ultimate burden of proving "that the

defendant's conduct violated a right so clearly established that a reasonable official in his

position would have clearly understood that he or she was under an affirmative duty to

refrain from such conduct." Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.2002). 

Based on the language in the implied consent statute, Powell argues that he is

entitled to qualified immunity because his decision that Plaintiff consented to the blood draw

was objectively reasonable. The pre-trial ruling in Plaintiff’s criminal case that there was

sufficient evidence that Plaintiff consented to the blood draw supports the argument that

Defendant acted reasonably. 

Qualified immunity applies as an affirmative defense to an established Constitutional

violation. If there is no violation, there is no need to engage in a qualified immunity
15

analysis. Thus, "[t]he threshold inquiry a court must undertake in a qualified immunity

analysis is whether plaintiff's allegations, if true, establish a constitutional violation."

Cummings v. City of Akron 418 F.3d 676, 685 (6th Cir. 2005) (citing Hope v. Pelzer, 536

U.S. 730, 736 (2002). 

Assuming the truth of Plaintiff’s facts, Powell violated his Fourth Amendment rights

because he did not consent to the test, or alternatively, revoked implied consent given

under the statute. It is axiomatic that Plaintiff’s Fourth Amendment rights to be free from

an unreasonable search were “clearly established” at the time of the violation. See, Hodari,

at 624-25. Given that Plaintiff allegedly did not consent to the search, nor were any other

search warrant exceptions available, Defendant’s ordering of the blood draw was

objectively unreasonable in light of Plaintiff’s clearly established Fourth Amendment rights.

Therefore, the affirmative defense of qualified immunity is unavailable to Powell. 

Furthermore, at this point in the proceedings, the Court cannot grant summary

judgment to Defendant based on qualified immunity, because the facts are in dispute.

Since there is a genuine issue of material fact regarding Plaintiff’s consent, qualified

immunity is inappropriate. 

V. CONCLUSION

For the reasons stated above, the Court DENIES Defendant Powell’s motion for

summary judgment on the Fourth Amendment § 1983 claim and GRANTS Defendant’s

motion for summary judgment on all other claims.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: October 27, 2010
16

CERTIFICATE OF SERVICE

Copies of this Order were served upon counsel of record on this date by ordinary

mail and/or electronic filing.

 

 s/Bernadette M. Thebolt

 Case Manager