UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HAROLD JONES,

Plaintiff,

Case No. 09-CV-11211-DT

v.

HONORABLE DENISE PAGE HOOD

CHARTER TOWNSHIP OF GENESEE, et al.,

Defendants.

______________________________________/

ORDER REGARDING REPORT AND RECOMMENDATION

and

NOTICE OF FINAL PRETRIAL CONFERENCE

Plaintiff Harold Jones filed a three-count Complaint against Defendants Charter Township

of Genesee, Robert Roberts and Paul Colliver alleging: Violation of Civil Rights and Excessive

Force and Deliberate Indifference (Count I); Assault and Battery (Count II); and Gross Negligence

(Count III). Discovery has been held and Defendants filed the instant Motion for Summary

Judgment. This matter is before the Court on a Report and Recommendation issued by Magistrate

Judge Mona K. Majzoub dated July 28, 2010 recommending to grant in part and deny in part

Defendants’ Motion for Summary Judgment. The Magistrate Judge recommended that the Court

dismiss all the claims against Defendants except for the excessive force and assault and battery

claims against Defendant Robert Roberts. Defendant Roberts timely filed Objections on August 10,

2010. Plaintiff filed a response to the Objections on August 23, 2010 and Defendant Roberts replied

on September 2, 2010.

A district court must conduct a de novo review of the parts of a magistrate judge’s report and

recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district
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court may accept, reject, or modify, in whole or in part, the findings or recommendations made by

the magistrate judge. Id.; United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985); Flournoy v.

Marshall, 842 F.2d 875, 878 (6th Cir. 1987). A district court is not required to address each

objection independently or in writing. See Ivy v. Sec’y of Health & Human Servs., 976 F.2d 288,

289-90 (6th Cir. 1992); Stump v. Sec’y of Health & Human Servs., 27 F.3d 1050 (Table), 1994 WL

194174 at *3 (6th Cir. May 16, 1994)(unpublished).

Defendant Roberts filed seven-numbered Objections to the Report and Recommendation:

No. 1: Defendant Roberts objects to the Magistrate Judge’s statement of facts

as to Plaintiff’s wife’s testimony that Defendant Roberts was yelling or calling

Plaintiff any names and to the Magistrate Judge’s reliance, if any, on the facts that

the name calling and yelling constitute a constitutional violation.

No. 2: Defendant Roberts objects to the Magistrate Judge’s conclusion that

Defendant Roberts’ actions amounted to a seizure as opposed to a non-Fourth

Amendment medical assist and that the Magistrate Judge improperly distinguished

the case from Peete v. Metro. Gov’t of Nashville and Davidson County, 486 F.3d

217, 220 (6th Cir. 2007).

No. 3: Defendant Roberts objects to the Magistrate Judge’s conclusion based

on the undisputed facts known to Defendant Roberts, that his use of force was

objectively unreasonable under the circumstances.

No. 4: Defendant Roberts objects to the Magistrate Judge’s conclusion that

Defendant Roberts is not entitled to summary judgment on the excessive force and

assault and battery claims because of the Magistrate Judge’s impermissible reliance

on the alleged subjective intent of Defendant Roberts given the alleged past “history

of negative encounters.”

No. 5: Defendant Roberts objects to the Magistrate Judge’s failure to

consider the defense of qualified immunity given the undisputed material facts and

controlling case law with regard to the use of force in situations where the officer’s

actions amount to a seizure as well as when the officer’s actions do not constitute a

seizure.

No. 6: Defendant Roberts objects to the Magistrate Judge’s conclusion as to

the assault and battery claim under Michigan law as Plaintiff failed to address that

claim in response to Defendant Roberts’ Motion for Summary Judgment.
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No. 7: Defendant Roberts objects to the Magistrate Judge’s conclusion that

there are factual questions regarding Plaintiff’s state assault and battery claim and

that Defendant Roberts is not entitled to governmental immunity on this claim.

Objections Nos. 1 to 5 are addressed together since these objections relate to the Magistrate

Judge’s findings and conclusions of law as to the excessive force claim against Defendant Roberts.

The Court agrees with the Magistrate Judge that as to Defendant Roberts, there are there are genuine

issues of material fact as to whether the amount of force used by Defendant Roberts on Plaintiff was

reasonable. The Court overrules Defendant’ Objections to the Magistrate Judge’s conclusion and

accepts the Magistrate Judge’s finding of genuine issues of material fact. The Magistrate Judge’s

analysis properly considered all the evidence before her and the law to reach her recommendation

that summary judgment was not appropriate as to Defendant Roberts’ actions against Plaintiff. The

Magistrate Judge properly noted Defendant Roberts’ arguments that he was entitled to qualified

immunity but that there remained genuine issues of material fact as to whether the use of excessive

force by Defendant Roberts was objectively reasonable under the Fourth Amendment. 

As to the Defendant Roberts’ Objections Nos. 5 to 7 relating to the assault and battery claim,

the Court rejects the Magistrate Judge’s findings and recommendations on this issue. Under

Michigan law, an assault is “an intentional unlawful offer of corporal injury to another person by

force, or force unlawfully directed toward the person of another, under circumstances which create

a well-founded apprehension of imminent contact, coupled with the apparent present ability to

accomplish the contact.” VanVorous v. Burmeister, 262 Mich. App. 467, 482-83 (1997). Battery

is “a wilful and harmful or offensive touching of another person which results from an act intended

to cause such contact.” Id. at 483.

Given that Plaintiff, at his deposition, testified that he did not know the police were at his
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home, there is no genuine issue of material fact that an assault was made upon him since he could

not have formed a “well-founded apprehension of imminent contact.” There may be a wilful and

harmful touching of Plaintiff by Defendant Roberts since there is no requirement that person must

apprehend a battery. However, since Plaintiff did not respond to Defendants’ arguments raised in

their Motion for Summary Judgment on the assault and battery issue, the Court finds that Plaintiff

waived any arguments on his assault and battery claim against Defendant Roberts. Under Rule 56(e)

of the Rules of Civil Procedure, a party opposing a properly supported motion for summary

judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth

specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Plaintiff did not do so in his response to Defendants’ Motion for Summary

Judgment.

No Objections were filed to the Magistrate Judge’s findings and recommendations that any

denial of a serious medical need under the Due Process Clause of the Fourteenth Amendment should

be dismissed, that the Defendant Township should be dismissed and that the state law gross

negligence claim should be dismissed. The Court finds that the Magistrate Judge reached the correct

conclusions on these issues and accepts and adopts the Magistrate Judge’s findings and conclusions.

Accordingly,

IT IS ORDERED that Magistrate Judge Mona K. Majzoub’s July 28, 2010 Report and

Recommendation [No. 19] is ACCEPTED AND ADOPTED IN PART AND REJECTED IN PART

as noted above.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment [No. 10,

1/15/2010] is GRANTED IN PART and DENIED IN PART. The 42 U.S.C. § 1983 excessive force
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claim against Defendant Roberts remain set forth in Count I.

IT IS FURTHER ORDERED that the deliberate indifference of serious medical need claim

(only) in Count I, the Assault and Battery claim in Count II and the Gross Negligence in Count III,

are DISMISSED.

IT IS FURTHER ORDERED that Defendants Charter Township of Genesee and Paul

Colliver are DISMISSED with prejudice.

IT IS FURTHER ORDERED that a Final Pretrial Conference is scheduled for Monday,

November 15, 2010, 2:30 p.m. The parties must submit a proposed Joint Final Pretrial Order

pursuant to E.D. Mich. LR 16.2 by November 8, 2010.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: September 27, 2010

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

on September 27, 2010, by electronic and/or ordinary mail.

S/William F. Lewis 

Case Manager