1

In an earlier Order, this Court declined to exercise supplemental jurisdiction over

Plaintiff’s state-law claims, including but not limited to those for intentional infliction of

emotional distress, gross negligence, concert of action, and civil conspiracy, dismissing

them without prejudice. (Doc. No. 6.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEREK ANDREWS,

Plaintiff,

v.

OAKLAND COUNTY, ET AL.,

Defendants.

 /

Case No. 09-10372

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION SUMMARY

JUDGMENT [9]

This § 1983 action arises out of a serious injury single-car accident that occurred on

October 17, 2007. On September 11, 2008, Plaintiff Derek Andrews pleaded guilty to

operating a vehicle while impaired, Mich. Comp. Laws § 257.625(1)(a); a reduced charge

from the original charge of operating while intoxicated causing serious injury, Mich. Comp.

Laws § 257.625(5). Defendant Oakland County Deputies Thomas, Kammer and Richert

investigated the accident. Both Plaintiff and his female passenger were injured in the

accident; the female passenger suffered serious injuries. Plaintiff’s complaint, brought

pursuant to 42 U.S.C. § 1983, alleges that the Defendants violated his Fourteenth

Amendment due process rights and his Eight Amendment right to be protected from cruel

and unusual punishment.1

 Specifically, as to the due process violation, Plaintiff avers that

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he told Deputy Richert within 24 hours of the accident “that there was a struggle in the

vehicle immediately prior to the accident” with his female passenger. (Pl.’s 5/14/09 Aff. ¶

5.) Thus, Plaintiff argues, by deliberately omitting information about his female passenger’s

culpable conduct in connection with the accident in their accident reports and failing to

convey this information to others responsible for investigating or initiating potential criminal

charges, Defendant Deputies caused Plaintiff to incur the expense and humiliation of

defending against an unsubstantiated and inappropriate felony charge for operating while

intoxicated causing serious injury, Mich. Comp. Laws § 257.625(5), as opposed to the

lesser expense and humiliation of defending against the lesser charge of operating a

vehicle while impaired in violation of Mich. Comp. Laws § 257.625(1)(a). As to the Eighth

Amendment cruel and unusual punishment violation, Plaintiff avers that, following the

accident and shortly after he arrived at the hospital, Defendant Deputy Richert “came into

the hospital room” where he was located “and threw a cupped handful of water in my face

as I was resting, strapped to a backboard” and “attempted to question me about the

accident.” (Pl.’s 5/14/09 Aff. ¶¶ 3-4.) As to Defendant Oakland County, Plaintiff alleges

that the County has policies, practices, or customs of deliberate indifference to the

Fourteenth and Eighth Amendment rights at issue here thus rendering it liable to Plaintiff

under § 1983.

For the reasons stated below, Defendants’ motion for summary judgment is

GRANTED.

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I. Facts

On October 17, 2007, Plaintiff was involved in a single car accident. Both Plaintiff and

his female passenger were injured. Her injuries were more serious than his. Both were

transported by the Rochester Hills Fire Department to Pontiac Osteopathic Hospital. 

Plaintiff admitted to investigating officers and others that he had consumed alcohol

prior to driving, that he and his female passenger had been arguing, that when she went

to hit him he lost control of the car, and that he did not mean to hurt her. Plaintiff

repeatedly asked to be taken to jail. Blood drawn pursuant to a search warrant indicated

that his blood alcohol level was .08% approximately two hours after the crash. 

Defendant Deputy Richert, a member of the crash reconstruction unit, was the officer

in charge of the accident investigation. (Defs.’ Ex. 2, 10/21/07 Incident/Prosecution Report

at 2.) Sergeant Stoner was the shift sergeant who spoke with Plaintiff at Pontiac

Osteopathic Hospital. (Id.) Defendant Deputy Thomas was the responding officer who also

spoke with Plaintiff. (Id.) Defendant Deputy Kammer was also a responding officer. (Id.

at 3.) 

Deputy Thomas was the first officer on the scene. He reported that:

I was traveling west bound on W. Avon road when I noticed two vehicles stopped

on the side of the road. As I approached, I observed a white female (Merissa

Mazur) lying on the west bound curve in a fetal position. Merissa was

unconscious and unresponsive, next to her was a white male lying on his back.

Approximately ten feet from them was a red SUV with obvious damage. All over

the road was debris that appeared to have come from the red SUV. The male

said he was the driver of the vehicle and identified himself with Michigan driver

. . . license as Derek Taylor Andrews.

Derek had injuries to his head and face but was able to speak. When I first

approached he got up and stated “I was drinking, take me to jail” then laid back

down. As I spoke with Derek I could smell a strong odor of intoxicant coming

from his breath. Derek continue [sic] to say “I’m hurt take me to jail. I asked

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Derek how he and Merissa got out of the car; he said they walked out and he

helped her to where she was. Due [sic] to Derek’s condition no field sobriety or

preliminary breath test were conducted.

ACTION TAKEN: Rochester Hills Fire Department arrived on the scene and

transported both Merissa and Derek to POH. I called for an accident

investigator, Sergeant Wandri and Deputy Richert responded and processed the

scene. I informed Deputy Kammer, who was assisting at the scene, that I

thought there may be alcohol involved. Deputy Kammer went to the hospital to

investigate, while I stayed on the scene. SEE SUPPLEMENTAL. Deputy

Kammer obtained a searched [sic] warrant from Magistrate Balian to have blood

drawn from Derek. Derek’s license was confiscated and he was issued a paper

license.

A warrant packet, for Operating While Intoxicated causing serious accident, will

be submitted pending result of blood draw.

(Id. at 7, Thomas 10/21/07 Report.) 

Sergeant Stoner reports that he spoke with Plaintiff at Pontiac Osteopathic Hospital

after the accident:

Both subjects were transported to POH. Upon arrival I received information from

Dr. Blaker that the female passenger of the vehicle was in critical condition. The

driver later ID as Derek Andrews was in fare [sic] condition. I talked to Andrews

who said that he and his girlfriend were at a friend’s house. They both had been

drinking and he also had smoked some Marijuana prior to driving. While they

were W/B on Avon Road W/O Livernois they began to argue. Andrews said his

girlfriend went to hit him and he lost control of the vehicle. Andrews said he

climbed out of the vehicle. The next thing was a deputy asking him what

happened. I asked Andrews if he would consent to a Blood test. Andrews said

“yes,” “I messed up just take me to jail”. Deputy Kammer later arrived with the

Blood Test and obtained the sample. 

(Id. at 8, Sgt. Stoner 10/21/07 Report (emphasis added).) 

Deputy Kammer was also at the accident site, assisted Deputy Thomas, and reported

that:

Once [Rochester Hills Fire Department] had transported both the driver and

passenger to POH Medical, Deputy Thomas advised me that he had smelled

intoxicants on the driver’s (Derek Andrews) breath. Deputy Thomas requested

that I go to POH and investigate while he stayed on scene at the accident.

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Upon arrival at POH, I went into the Emergency Room and spoke with Derek

Andrews. Derek stated that he was driving his girlfriend (Marissa [sic] Mazur)

home from a party at approx. 04:20 hrs this morning. Derek stated that they

were arguing and he drove off of the roadway onto the south shoulder. Derek

stated that he remembered loosing [sic] control of the vehicle, but not much after

that. I asked Derek if he had been drinking alcohol at the party prior to the

accident and he replied that he had. Derek stated that he had consumed

approx. 6 beers between 02:00 hrs and 03:30 hrs. I then asked him if he [sic]

done any drugs while at the party and he replied that he had smoked some

marijuana. I asked him how much he had smoked and he replied that he had

done two “bong hits” between the hours of 01:00 hrs and 02:00 hrs.

After speaking with Derek I contacted Magistrate Balian from the 52-3 District

Court. I advised her of the above information and requested she authorize a

search warrant for a blood draw. The completed search warrant was then sworn

to and faxed to Magistrate Balian. Magistrate Balian signed the search warrant

and faxed it back to me at POH.

With the completed search warrant in hand, I contacted Dr. Chris Steinacker for

the blood draw. Dr. Steinacker then filled the two blood vials with Derek

Andrews’ blood and handed it to me. I then placed the vials into the MSP blood

kit and sealed the box.

With the completed blood draw kit I left POH and returned to the Rochester Hills

Sub Station where the blood kit was mailed to MSP for testing.

(Id. at 9, Kammer 10/21/07 Report (emphasis added).) 

Deputy Richert’s report details the other officer’s activities and includes Plaintiff’s

statements (1) to Deputy Thomas that he was the driver and that he had been drinking,

and (2) to Sgt. Stoner and to Deputy Kammer at the hospital that he was operating the

vehicle that crashed and that he was drinking. (Id. at 10, Richert 10/21/07 Report.) In his

affidavit, Deputy Richert avers that, by the time he arrived on the accident scene, Plaintiff

and his passenger had already been removed to the hospital. (Richert 4/16/09 Aff. ¶ 4.)

He further avers that he later went to the hospital and, while there, spoke with Plaintiff’s

parents and Merissa Mazur’s mother, but did not speak with either Plaintiff or Merissa

Mazur or have any contact with Plaintiff at the hospital on the date of the accident. (Id. at

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¶¶ 5-9.) Plaintiff’s affidavit contradicts this. He avers that, while he was in the hospital on

October 21, 2007, Deputy Richert came into him hospital room, “threw a cupped handful

of water in [his] face was [he] was resting, strapped to a backboard,” “attempted to question

[him] about the accident,” and that “[w]ithin 24 hours of the accident, [he] told Officer

Richert that there was a struggle in the vehicle immediately prior to the accident.” (D.

Andrews 5/14/09 Aff. ¶¶ 2-5.) Plaintiff’s parents, Mark and Suki Andrews, also aver in their

affidavits that they “arrived at the hospital within hours of the accident,” “nearly collided with

Officer Richert as [they] were entering Derek’s room – Officer Richert was leaving [their]

son’s room at the same time [they] were entering it,” and about 30 or 40 minutes later,

Officer Richert told them that Derek “had told him that there was a struggle in the car before

the accident.” (M. Andrews 5/14/09 Aff. at ¶¶ 2-4; S. Andrews 5/14/09 Aff. at ¶¶ 2-4.)

On October 27, 2007, Deputy Thomas provided an additional report:

I conducted a follow up at Pontiac Osteopathic Hospital to check on the injuries

Merissa Mazur sustained during the crash that occurred on October 21, 2007.

I spoke with Doctor Samuels who is the attending Physician in the intensive care

unit at the hospital. She stated that Merissa initially sustained brain bleeding that

required surgery with evacuation of the blood and removal of a portion of her

skull to prevent the brain from swelling.

Doctor Samuels further stated that Merissa has been in the intensive care unit

since the initial surgery and is currently on a mechanical ventilator. She also has

pneumonia and high fevers.

(Id. at 13, Thomas 10/27/07 Supplemental Report.) 

On November 9, 2007, Captain Quaine of the Rochester Hills Fire Department

provided the following witness statement:

On Sunday 10-21-07 @ 0424 hrs, I was dispatched to a vehicle accident on W.

Avon W/O Livernois. Upon arrival [sic] found 2 [patient] lying on ground next to

the curb, 1 female [patient] that was unresponsive, and 1 male [patient] lying

next to her. He stated numerous times, “I’m drunk. I need to go to jail.” “I didn’t

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mean to hurt her, take me to jail.” He stated he was driving, and walked out of

the car. See medical run sheet for further information.

(Defs.’ Ex. 2 at 19, Qauine 11/9/07 Witness Statement.)

On November 19, 2007, Deputy Rickert reported the following “Crash Findings.”

Derek Taylor Andrews was operating a 1999 Ford Explorer eastbound on West

Avon Road. He was accompanied by Merissa Leigh Mazur, seated in the front

passenger seat. Andrews had admittedly consumed alcohol prior to driving. He

lost control of his vehicle, rolling over, causing serious head trauma to Miss

Mazur.

Blood drawn pursuant to a search warrant indicated his blood alcohol level was

.08% approximately two hours after the crash.

(Id. at 16, Richert 11/19/07 Report.) 

On November 20, 2007, Deputy Richert reported that the Oakland County Prosecutors

Office “reviewed the complaint,” and issued an arrest warrant for “OWI Causing Serious

Injury” on November 21, 2007. (Defs.’ Ex. 2 at 26.) 

On November 21, 2007, Plaintiff was arraigned and a $5,000 personal bond was

issued. (Id.) 

On July 29, 2008, Deputy Thomas supplemented the accident report to clarify that

Plaintiff told him at the accident scene that while in the car, before the accident, he and his

female passenger began to argue and “at some point Marissa [sic] grabbed the steering,

Derek then lost control and the vehicle ran off the road and rolled over.” (Defs.’ Ex. 1,

Thomas 7/29/08 Supplemental Report (emphasis added).)

On September 11, 2008, Plaintiff pleaded guilty to operating a vehicle while impaired,

a reduced charge from the original charge of operating while intoxicated causing injury. He

was sentenced to two years’ probation, fines, and various other requirements.

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On February 1, 2009, Plaintiff filed his § 1983 action in this Court. The matter is now

before the Court on Defendants’ motion for summary judgment.

II. Summary Judgment Standard

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

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

P. 56(c). 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 non-moving party may not rest upon its mere allegations, however, but rather “must

set forth specific facts showing that there is 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).

III. Analysis

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A. Defendants’ Heck v. Humphrey Argument

Defendants first argue that Plaintiff’s § 1983 complaint must be dismissed because,

as mandated by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), damages for harms

allegedly “caused by actions whose unlawfulness would render a conviction or sentence

invalid” are unavailable unless the plaintiff proves that “the conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Because Plaintiff has not shown

that his conviction or sentence for Operating While Impaired fits these requirements,

Defendants contend that his § 1983 action must be dismissed. 

Defendants’ argument misses the point of Plaintiff’s § 1983 suit. He does not

challenge the charge to which he pleaded guilty. Rather, Plaintiff raises a Fourteenth

Amendment due process challenge to the original charge of operating while intoxicated

causing serious injury, Mich. Comp. Laws § 257.625(5). Plaintiff alleges that Defendant

Deputies deliberately omitted his statements to them that he and his female passenger

were arguing and struggling in the car and that she grabbed the steering wheel immediately

before the accident causing him to lose control. He further argues that those omissions led

to the issuance of an arrest warrant and the prosecution of charges against him for

operating while intoxicated causing serious injury in violation of Michigan Compiled Law §

257.625(5). In essence, Plaintiff is arguing that Defendant Deputies violated his Fourteenth

Amendment due process rights by their deliberate omissions because, when those omitted

facts are considered, probable cause for the original charge is lacking. Because Plaintiff

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was never brought to trial on the original charge of operating while intoxicated causing

serious injury, there is no Heck v. Humphrey issue here. 

B. Plaintiff’s Due Process Arguments

Defendants argue in their motions that they are entitled to qualified immunity. In a

very recent decision, the Sixth Circuit addressed a similar argument in the context of a §

1983 excessive force case. See Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009). It began,

as this Court does, with a discussion of the doctrine of qualified immunity and how the

Court determines whether a defendant is entitled to the protection afforded by that doctrine.

The doctrine of qualified immunity shields “‘government officials performing

discretionary functions’” 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.’” Id. at 309 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

On summary judgment, the Court is required to view the facts in the light most favorable

to the non-moving party; Plaintiff in this case. Viewing the facts in that light, the Court must

then determine “whether: 1) the violation of a constitutional right has occurred; and 2) the

constitutional right at issue ‘was clearly established at the time of defendant’s alleged

misconduct.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), and citing Dunigan

v. Noble, 390 F.3d 486, 491 (6th Cir. 2004)). Although the Supreme Court, in Pearson v.

Callahan, ___ U.S. ___, 129 S. Ct. 808, 818 (2009), recently held that the courts now have

discretion to address the second step first when appropriate, this Court, similar to the Sixth

Circuit in Grawey v. Drury, will first examine whether Plaintiff has presented evidence of a

constitutional violation. Grawey, 567 F.3d at 309. 

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As stated above, Plaintiff argues that Defendant Deputies violated his Fourteenth

Amendment due process rights and caused him to incur the expense and humiliation of

defending against an unsubstantiated and inappropriate felony charge for operating while

intoxicated causing serious injury, Mich. Comp. Laws § 257.625(5), as opposed to the

lesser expense and humiliation of defending against the lesser charge of operating a

vehicle while impaired in violation of Mich. Comp. Laws § 257.625(1)(a). Specifically,

Plaintiff argues that “[b]ut for Defendants’ willful and deliberate omissions and false

statements,” Plaintiff would never have been arrested and initially prosecuted under the

original charge of operating while intoxicated causing serious injury. This is in essence a

Fourth Amendment argument asserting that, but-for the deliberate omission of the female

passenger’s culpable conduct in connection with the accident, there was no probable cause

to arrest Plaintiff on the original charge. Plaintiff is mistaken.

As the Sixth Circuit recently observed in a similar case, “probable cause to justify an

arrest means facts and circumstances . . . 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.” Garner v. Grant, No. 08-

1418, 2009 WL 1391521, *2 (6th Cir. May 15, 2009) (quoting Michigan v. DeFillippo, 443

U.S. 31, 37 (1979)). Construing the evidence in the light most favorable to Plaintiff and

including the omitted information that Plaintiff told Defendants that Merissa Mazur grabbed

the steering wheel of Plaintiff’s vehicle while they were arguing and caused him to lose

control, run off the road, and roll the vehicle, probable cause existed for Plaintiff’s arrest

under the original charge of operating while intoxicated causing serious bodily injury in

violation of Michigan Compiled Laws § 257.625(5).

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The Michigan statute for the original charge provides that:

A person, whether licensed or not, who operates a motor vehicle in violation of

subsection (1), (3), or (8) and by the operation of that motor vehicle causes a

serious impairment of a body function of another person is guilty of a felony

punishable by imprisonment for not more than 5 years or a fine of not less than

$1,000.00 or more than $5,000.00, or both.

Mich. Comp. Laws § 257.625(5). To convict, “[t]he prosecution ‘must establish beyond a

reasonable doubt that 1) the defendant was operating his or her vehicle in violation of MCL

257.625(1), (3), or (8); 2) the defendant voluntarily decided to drive, knowing that he had

consumed an intoxicating agent and might be intoxicated; and 3) the defendant’s operation

of the motor vehicle caused the victim’s [serious impairment of a body function].’” People

v. Wardwell, No. 280298, 2009 WL 186233, *3 (Mich. Ct. App. Jan. 27, 2009) (quoting

People v. Schaefer, 703 N.W.2d 774, 784 (Mich. 2005)). As to the third element, the

Michigan Supreme Court held in Schaefer that “it is the defendant’s operation of the motor

vehicle that must cause the victim’s [injury], not the defendant’s ‘intoxication.’” Schaefer,

703 N.W.2d at 782. It then clarified that this causation element has “two components:

factual cause and proximate cause.” Id. at 785. To establish factual cause, the prosecutor

must show that “‘but for’ the defendant’s conduct,” the result would not have occurred. Id.

To establish proximate cause, the prosecutor must show that “the victim’s injury [is] a

‘direct and natural’ result of the defendant’s actions.” Id. The Schaefer Court explained:

If factual causation is established, it must then be determined whether the

defendant’s operation of the vehicle was a proximate cause. In doing so, one

must inquire whether the victim’s [injury] was a direct and natural result of the

defendant’s operation of the vehicle and whether an intervening cause may have

superseded and thus severed the causal link. While an act of God or the gross

negligence or intentional misconduct by the victim or a third party will generally

be considered a superseding cause, ordinary negligence by the victim or a third

party will not be regarded as a superseding cause because ordinary negligence

is reasonably foreseeable.

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Id. at 786 (internal footnote omitted and emphasis in original). Michigan courts have upheld

the finding of proximate cause in a prosecution for operating while intoxicated causing

serious injury despite the victim’s negligent act of suddenly walking onto the road in front

of the defendant’s car. See, e.g., People v. Wardwell, No. 280298, 2009 WL 186233 (Mich.

Ct. App. Jan. 27, 2009); People v. Erskine, No. 258572, 2006 WL 515445 (Mich. Ct. App.

Mar. 2, 2006). As defined by the Michigan Supreme Court in Schaefer, the “gross

negligence” that may be regarded as a superseding cause under the statute “is not merely

an elevated form of ordinary negligence.” Schaefer, 703 N.W.2d at 786. Rather, “in

criminal jurisprudence, gross negligence means wantonness and disregard of the

consequences which may ensue, and indifference to the rights of others that is equivalent

to a criminal intent.” Id. (internal quotation marks and citation omitted.) 

Viewing the evidence presented here in the light most favorable to Plaintiff, probable

cause existed on the original charge. The facts and circumstances of the accident,

including Plaintiff’s statements (1) to the Sergeant Stoner that he and his girlfriend were

arguing, that she went to hit him and he lost control of the vehicle; (2) to Deputy Thomas

that Plaintiff and his female passenger “began to argue and at some point Marissa [sic]

grabbed the steering, Derek then lost control and the vehicle ran off the road and rolled

over;” and (3) to Deputy Richert that “there was a struggle in the vehicle immediately prior

to the accident,” are sufficient to warrant a prudent person to believe that Plaintiff had

committed the offense of operating a vehicle while intoxicated causing serious injury.

(Defs.’ Ex. 2 at 8, Sgt. Stoner 10/21/07 Report; Defs.’ 1, Deputy Thomas 7/29/08 Suppl.

Report; D. Andrews Aff. at ¶ 5.) Because Plaintiff cannot show that probable cause to

arrest and prosecute on the original charge is lacking when the omitted information is

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considered, there can be no Fourth Amendment violation. This leaves Plaintiff’s Fourteenth

Amendment due process claim.

Plaintiff alleges that Defendant Deputies deprived him of his due process rights by

failing to provide his statements about his passenger’s culpable conduct to the prosecutor

sooner. Plaintiff concedes that he was never tried on the original charges. Thus, there can

be no claim that Defendants’ omissions impacted the fundamental fairness of a trial that

never occurred. That Plaintiff pled guilty to the lesser charge of operating while impaired

does nothing to advance his due process claim when, as discussed above, Plaintiff cannot

show that probable cause was lacking on the original charge. Furthermore, careful review

of the materials presented to the prosecutor before a decision was made to issue an arrest

warrant on the original charge reveals that they contained information substantially similar

to that Plaintiff claims was deliberately omitted; i.e., – that Andrews told Sgt. Stoner that he

and his girlfriend were arguing, that she went to hit him and he lost control of the vehicle.

(Defs.’s Ex. 2 at 8, Sgt. Stoner 10/21/07 Report.) The affidavits Plaintiff presents here in

opposition to Defendants’ motion for summary judgment similarly state that Plaintiff told

Deputy Richert within 24 hours of the accident “that there was a struggle in the vehicle

immediately prior to the accident.” (D. Andrews Aff. at ¶ 5; M. Andrews Aff. at ¶ 4; S.

Andrews Aff. at ¶ 4.) Viewing the evidence in the light most favorable to Plaintiff, there is

no Fourteenth Amendment due process violation. 

The Court now addresses Plaintiff’s Eighth Amendment claim alleging that Defendant

Richert’s treatment of him in the hospital constituted cruel and unusual punishment. 

C. Plaintiff’s Excessive Force Argument

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Plaintiff asserts that when Defendant Richert threw a cupped handful of water in his

face and attempted to question him while he was “strapped to a backboard” and resting in

the hospital emergency room, Richert violated his Eighth Amendment right to be protected

from cruel and unusual punishment. Plaintiff is relying on the wrong Constitutional

Amendment. The Sixth Circuit has held that “[w]hich amendment applies depends on the

status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or

something in between.” Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002). Convicted

prisoners are afforded protection under the Eighth Amendment and the “deliberate

indifference standard sets the standard for an excessive force claim.” Lanman v. Hinson,

529 F.3d 673, 680 (6th Cir. 2008). Pretrial detainees are afforded protection under the

Fourteenth Amendment’s Due Process Clause “against physical abuse by officials.” Id. at

681. “But if the plaintiff was a free person, and the use of force occurred in the course of

an arrest or other seizure, then the plaintiff’s claim arises under the Fourth Amendment and

its reasonableness standard.” Id. at 680. At the time of the incident complained of here,

Plaintiff was a free person and thus his excessive force claim is governed by the Fourth

Amendment’s reasonableness standard. See id. 

Defendants argue that they are entitled to qualified immunity on Plaintiff’s excessive

force claim. “In step one of the qualified immunity analysis, the court determines whether

this evidence, produced by plaintiff, taken in the light most favorable to plaintiff but viewed

from the perspective of a reasonable officer on the scene, establishes a claim of excessive

force in violation of the Constitution.” Grawley, 567 F.3d at 309. If an excessive force

claim is established, the Court proceeds to the second step. At this step, the Court must

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determine whether the violated constitutional right was clearly established at the time of the

alleged misconduct. Id. 

Viewing the evidence in the light most favorable to Plaintiff, this Court concludes that

he has not established a claim of excessive force in violation of the Constitution. As the

Sixth Circuit recently observed “an excessive-force claimant must show something more

than de minimis force.” Leary v. Livingston County, 528 F.3d 438, 443 (6th Cir. 2008). In

Leary, the Sixth Circuit rejected an excessive force claim as de minimis where the

defendant officer hit the plaintiff on the back of his neck with a karate-type chop. The same

analysis and result apply here. Plaintiff’s single allegation of force in this lawsuit is that

Defendant Richert threw a cupped handful of water into his face. Plaintiff has not

presented evidence that he suffered “any objectively verifiable injury” from that action. Id.

“Nothing in short to indicate that the encounter rose above a ‘negligible [use of] force’ or

caused anything more than a ‘trifling injury.’” Id. (quoting Riley v. Dorton, 115 F.3d 1159,

1167 (4th Cir. 1997) (en banc)). Plaintiff may have a state-law tort claim for assault and

battery, but he has not established a claim for excessive force in violation of the

Constitution. “The point of the de minimis rule is to make it clear that the Constitution does

not become a ‘font of tort law’ that the federal courts ‘superimpose[] upon whatever

systems’ the States already have.” Leary, 528 F.3d at 445 (quoting Paul v. Davis, 424 U.S.

693, 701 (1976)). 

 D. Municipal Liability

Plaintiff also seeks to hold Oakland County liable for his alleged constitutional injuries.

Although “a municipality cannot be held liable under § 1983 on a respondeat superior

theory,” it may be sued directly under § 1983 if “the action that is alleged to be

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unconstitutional implements or executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body’s officer” or if “constitutional

deprivations [were] visited pursuant to governmental ‘custom.’” Monnell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978).

Before a municipality may be held liable under § 1983, a constitutional violation must

have occurred. See 42 U.S.C. § 1983. As discussed above, Plaintiff has failed to establish

that any of his constitutional rights were violated. Thus, Defendant Oakland cannot be held

liable, and Defendants’ motion for summary judgment is granted in its entirety.

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IV. Conclusion

For the above-stated reasons, Defendants’ motion for summary judgment is

GRANTED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: July 27, 2009

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

on July 27, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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