UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JENNIFER CRANDALL,

Plaintiff, Case No. 09-12677

v. Hon. Gerald E. Rosen

GENESEE COUNTY, SGT. COON,

OFC. LYNCH, AMY YORK, KYLE GUEST,

D. BAYLOCK, DAVID SCHMEIDER, 

STEPHANIE NELSON, D. HASKINS, 

G. GATICA, MICHAEL IGNASH, RODNEY

HUNT, and MEOCHY PROBY,

Defendants.

____________________________________/

OPINION AND ORDER REGARDING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on June 21, 2012 

 PRESENT: Honorable Gerald E. Rosen

 Chief Judge, United States District Court

I. INTRODUCTION

In this case, Plaintiff Jennifer Crandall has asserted federal and state-law claims

against Defendant Genesee County and a number of law enforcement officers employed

by the Defendant County, arising from the Defendant officers’ alleged use of excessive

force against Plaintiff while she was detained at the Genesee County Jail for a two-day

period in July of 2007. This Court’s subject matter jurisdiction rests upon Plaintiff’s

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assertion of claims under 42 U.S.C. § 1983 alleging violations of her rights under the U.S.

Constitution. See 28 U.S.C. § 1331.

Through the present motion, the Defendant law enforcement officers and Genesee

County seek an award of summary judgment in their favor on each of the claims asserted

against them in Plaintiff’s complaint. In support of this motion, Defendants argue (i) that

there is no evidence that certain of the officers named as Defendants in the complaint

were involved in any way in the incidents giving rise to Plaintiff’s claims; (ii) that the

degree of force used against Plaintiff during her detention at the Genesee County Jail was

appropriate as a matter of law, in light of Plaintiff’s own actions that necessitated this use

of force; (iii) that Plaintiff has failed to plead viable state-law claims of gross negligence

against the individual Defendants; and (iv) that Plaintiff has failed to identify a policy or

custom of the Defendant County that was the moving force behind any alleged violation

of her federal constitutional rights.

Defendants’ motion has been fully briefed by the parties. Having reviewed the

parties’ briefs and their accompanying exhibits, as well as the remainder of the record, the

Court finds that the relevant allegations, facts, and legal issues are sufficiently presented

in these written submissions, and that oral argument would not aid the decisional process. 

Accordingly, the Court will decide Defendants’ motion “on the briefs.” See Local Rule

7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets

forth the Court’s rulings on this motion. 

II. FACTUAL BACKGROUND

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Deputy Yorke was misnamed in Plaintiff’s complaint as Amy York. In addition, by the

time of her deposition in this case, Ms. Yorke evidently had gotten married, and she now goes by

the name of Amy Gatica.

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At around 2:00 p.m. on July 12, 2007, Plaintiff Jennifer Crandall was arrested by

officers of the City of Burton, Michigan police department on a domestic assault charge

and taken to the Genesee County Jail. This stay lasted until around 11:00 p.m. the

following day, July 13, 2007, when officers from the City of Roseville, Michigan took

custody of Plaintiff on an outstanding arrest warrant. During the course of this

approximately 33-hour stay at the Genesee County Jail, there were three instances in

which Plaintiff was placed in a restraint chair, a restraint bed, or both.

Upon her arrival at the Genesee County Jail on July 12, 2007, Plaintiff initially

was placed in a general population holding cell. At around 6:00 p.m. that evening,

however, Plaintiff was moved into a single-person isolation or “safety” cell, allegedly for

engaging in disruptive behavior. (See Defendants’ Motion, Ex. 1, Incident Report and

Safety Cell Placement Form.) While in this single-person cell, Plaintiff complained of

being cold and requested a blanket, and she also sought medical attention for an anxiety

attack. When the deputies in the area failed to address these complaints, Plaintiff began

knocking or banging on the cell door to get the officers’ attention. According to an

incident report prepared by one of the deputies, Defendant Amy Yorke,1

 Plaintiff was

warned to stop banging on the cell door, but she continued to do so. (See id.) 

Accordingly, at around 6:20 p.m., Plaintiff was placed in a restraint chair. About ten

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Although the complaint identifies this officer as “David Schmeider,” his incident report

reflects that the correct spelling of his last name is “Schmieder.” (See id.)

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minutes later, a nurse checked the straps being used to hold Plaintiff in the restraint chair

and found that they were OK, and Plaintiff remained in this chair for about two hours

before being released and returned to the general population holding cell. (See id.)

At around 11:50 a.m. the following morning, July 13, 2007, Plaintiff was placed in

a single-person safety cell for a second time, after she allegedly knocked repeatedly on a

window in the general holding cell. (See Defendants’ Motion, Ex. 3, Incident Report.) 

According to an incident report prepared by one of the Defendant officers, Deputy

Darious Baylock, Plaintiff began yelling out of her isolation cell and banging on the door,

and she continued this disruptive behavior despite attempts by the deputies and by

Sergeant David Schmieder (also named as a Defendant) to speak to her and get her to

stop. (See id.)

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 Plaintiff also covered up a camera in the safety cell. Based on this

purportedly disruptive behavior, Plaintiff was again placed in a restraint chair, with a

nurse again checking the restraining straps. (See id.) According to Plaintiff, in the course

of placing her in the restraint chair, one of the deputies grabbed her by the throat or neck

and slammed her into the wall, and a number of deputies “physically grabbed me and

threw me into the chair.” (Plaintiff’s 3/25/2010 Dep. at 134, 137; Plaintiff’s 3/31/2010

Dep. at 134, 142-44.)

After Plaintiff was placed in a restraint chair for a second time, she complained

that her hands were strapped in so tightly that she was losing circulation, but a nurse

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found no problems with the restraining straps. (See Plaintiff’s 3/25/2010 Dep. at 136-38.) 

In an effort to ease the pain from the straps, Plaintiff worked her right arm loose from the

restraint chair. (See id.) In response, Sergeant Schmieder determined that Plaintiff

should be placed in a restraint bed. (See Defendants’ Motion, Ex. 3, Incident Report.) 

According to Sergeant Schmieder’s report, force had to be used to put Plaintiff in the

restraint bed “due to her resisting.” (Id.) In addition, Sergeant Schmieder reported that

Plaintiff “began banging her head” against the bed, “causing a small laceration to her

forehead,” and it was determined that a safety helmet should be placed on Plaintiff’s

head. (Id.) After about two hours, Plaintiff was removed from the restraint bed and

returned to a safety cell.

Later that evening, at approximately 8:30 p.m., Plaintiff was again moved into a

safety cell for “insolent and uncooperative” behavior. (See Defendants’ Motion, Ex. 5,

Incident Reports.) According to the reports of Deputy Stephanie Nelson, Deputy

Guadalupe Gatica, and Sergeant Michael Ignash — each of whom has been named a

Defendant in this action — Plaintiff continued her disruptive behavior while in the

isolation cell, yelling and banging on the cell door despite being told several times to

stop. (See id.) Accordingly, it was again determined that Plaintiff should be placed in a

restraint bed, with Sergeant Ignash, Sergeant Schmieder, Deputy Gatica, Deputy Nelson,

and Deputy (and co-Defendant) Duane Haskins all participating in this effort. (See id.) 

The Defendant officers reported that Plaintiff disregarded their commands to lie down on

the restraint bed, and instead resisted their attempts to place her in the bed by turning on

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her side, attempting to get up, swinging her arm, pushing, and kicking. (See id.) Based

on this continued resistance, Sergeant Ignash administered a “1-2 second spray of O.C.

spray” (i.e., pepper spray), and the Defendant officers then were able to complete the

process of placing Plaintiff in the restraint bed. (Id.) Within a short time, Plaintiff was

checked by a nurse, taken to a shower, given a change of clothes, and returned to a safety

cell, (see id.), where she was held until being transferred to the custody of the Roseville

police at around 11:00 p.m. that night. 

Plaintiff has offered a rather different account of this incident in which she was

placed in a restraint bed and sprayed with OC spray. According to Plaintiff’s deposition

testimony, the Defendant officers called her a “f*ck boy” and a “dyke” as they placed her

in the restraint bed, and they pushed their knees down into her back and shoulder and

“physically pick[ed] me up and forc[ed] me onto the bed.” (Plaintiff’s 3/31/2010 Dep. at

116-18.) When Plaintiff asked the officers to avoid pulling on or otherwise harming her

dislocated left shoulder, they nonetheless “continued to put pressure onto my left arm” by

placing their knees on her back and shoulder, resulting in her body being “slammed up

against the bed” and her head “bouncing off of” the restraint bed “at least six times,” and

leading to contusions on her head. (Id. at 117-19.) Plaintiff further testified that when the

OC spray was administered, it was held only “2 1/2 inches away from my eye” and

sprayed “directly into my left eye.” (Id. at 119.)

After this use of OC spray, the Defendant officers continued the process of

strapping Plaintiff face down in the restraint bed with her face lying “in a pool of Mace,”

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The parties agree that Plaintiff’s deposition testimony references only the second time

she was placed in a restraint chair — i.e., the incident that occurred at around noon on July 13. 

(See Defendants’ Motion, Br. in Support at 4; Plaintiff’s Response Br. at 2 & n.1.) Although the

incident reports generated by the Defendant officers refer to an earlier occasion on the evening

of July 12 when Plaintiff was placed in a restraint chair, (see Defendants’ Motion, Ex. 1),

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leaving her with burning eyes, difficulty breathing, and vomiting “due to the inhalation of

the Mace in my mouth.” (Id. at 120, 122.) The Defendant officers initially ignored

Plaintiff’s distress and pleas for medical assistance, but a female deputy (apparently

Deputy Nelson) eventually led her to a shower and told her that she would be given two

minutes to rinse the OC spray out of her eyes. (See id. at 120-24.) Part of this limited

opportunity for showering, however, was spent with Plaintiff groping to find the shower

faucets in light of the OC spray in her eyes, with the female deputy subjecting Plaintiff to

a “hot and cold game[],” telling her that she was “getting warmer or colder” rather than

simply leading Plaintiff directly to the faucets and turning on the water for her. (Id. at

124-25.) When Plaintiff asked for more time to wash the OC spray from her eyes, the

deputy refused this request and led Plaintiff back to an isolation cell, with her eyes still

burning from the spray. (Id. at 125-27.) In an effort to alleviate this burning, Plaintiff

stuck her head in the cell toilet. (See id. at 127.)

Although Plaintiff was able to recall various details of this incident on the evening

of July 13 when she was sprayed with OC spray and strapped to a restraint bed, her

testimony as to the events that preceded this incident is much more limited. Plaintiff

testified, for example, that she recalled only one of the two occasions when she was

placed in a restraint chair. (See Plaintiff’s 3/25/2010 Dep. at 134-35.)3

 Likewise,

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Plaintiff could not recall this earlier incident, (see Plaintiff’s 3/25/2010 Dep. at 134-35).

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From her testimony, it appears that Plaintiff might have recalled the two separate

placements into a restraint bed as comprising a single incident. She testified that she was placed

into a restraint bed after she had worked her right arm loose from the restraint chair, and that OC

spray was administered as she was being placed into the bed. (See id. at 135-38.) The reports

prepared by the Defendant officers, however, indicate that these were two separate incidents. 

According to these reports, Plaintiff was first placed into a restraint bed at around noon on July

13, after she worked her arm free from the restraint chair. (See Defendants’ Motion, Ex. 3.) She

then was returned to the restraint bed at around 8:30 that evening, with OC spray administered

during this second placement. (See Defendants’ Motion, Ex. 5.)

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To the extent that Plaintiff did single out one particular officer in her deposition

testimony, it appears that her identification of this officer was erroneous. In particular, Plaintiff

identified “Sergeant Coon” as an “African-American male” officer who grabbed her by the back

of her neck, slammed her into the wall, grabbed her arm, and threw her into the restraint chair. 

(Plaintiff’s 3/25/2010 Dep. at 142-44; see also Plaintiff’s 3/31/2010 Dep. at 143-45.) Yet, as

Defendants point out, Defendant Joseph Coon is a white male, and he was a lieutenant at the

time of the incidents giving rise to this suit. In addition, Defendant Coon has testified that he

was not working on the dates in question, and that he had no contact with Plaintiff during her

stay at the Genesee County Jail. (See Defendants’ Motion, Ex. 9, Coon Dep. at 23-24, 33.) 

Finally, Defendants state without contradiction that each sergeant named as a Defendant is a

white male. In light of this record, Plaintiff acknowledges that “it [is] possible” that her

reference to “Sergeant Coon” at her deposition was mistaken, and she suggests that she instead

meant to refer to Deputy (not Sergeant) Darious Baylock. (Plaintiff’s Response Br. at 6 n.2.)

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Plaintiff remembered being placed in a restraint bed only one time. (See Plaintiff’s

3/25/2010 Dep. at 135.)4

 More generally, Plaintiff was largely unable to identify or

describe the officers who subjected her to the mistreatment giving rise to her claims in

this case. (See, e.g., Plaintiff’s 3/25/2010 Dep. at 137 (Plaintiff unable to identify

deputies who put her in restraint chair); Plaintiff’s 3/31/2010 Dep. at 114 (Plaintiff unable

to describe the approximately six officers involved in placing her in restraint bed, except

that one was a female deputy).)5

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Rule 56 has recently been revised in various respects, but the language quoted here (and

immediately below) reflects the Rule as it read when Defendants filed their motion. Under the

current Rule, the bulk of the quoted language from subsection (c) has been moved to subsection

(a), but the recent amendments do not appear to have altered the overarching standards for

resolving a summary judgment motion.

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III. ANALYSIS

A. The Standards Governing Defendants’ Motion

Through the present motion, the twelve Defendant law enforcement officers and

their employer, Defendant Genesee County, seek an award of summary judgment in their

favor on Plaintiff’s federal claims under 42 U.S.C. § 1983, as well as her state-law claims

of assault and battery and gross negligence. Under the pertinent Federal Rule, summary

judgment is proper “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that 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. P. 56(c).6

 As the

Supreme Court has explained, “the plain language of Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party

who fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).

In deciding a motion brought under Rule 56, the Court must view the evidence “in

a light most favorable to the party opposing the motion, giving that party the benefit of all

reasonable inferences.” Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d

854, 861 (6th Cir. 2007). Yet, the nonmoving party “may not rely merely on allegations

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Plaintiff also named three nurses as Defendants in her first amended complaint, but the

claims against these three individuals were dismissed by stipulated order dated May 21, 2010.

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or denials in its own pleading,” but “must — by affidavits or as otherwise provided in

[Rule 56] — set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P.

56(e)(2). Moreover, any supporting or opposing affidavits “must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant is

competent to testify on the matters stated.” Fed. R. Civ. P. 56(e)(1). Finally, “[a] mere

scintilla of evidence is insufficient” to withstand a summary judgment motion; rather,

“there must be evidence on which the jury could reasonably find for the non-moving

party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and citation omitted).

B. Plaintiff Has Failed to Produce Any Evidence That Six of the Defendant

Officers Were Involved in the Incidents Giving Rise to Her Claims.

In her first amended complaint, Plaintiff has identified twelve law enforcement

officers as purported participants in the mistreatment she allegedly suffered during her

33-hour stay at the Genesee County Jail in mid-July of 2007.7

 As their first argument

advanced in the present motion, however, Defendants contend that the record fails as a

matter of law to establish a factual basis for holding six of these twelve individual

Defendants liable for any harm allegedly inflicted upon Plaintiff during this period of

detention. The Court agrees.

It is a well-established principle of federal § 1983 law that “[e]ach defendant’s

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liability must be assessed individually based on his own actions.” Binay v. Bettendorf,

601 F.3d 640, 650 (6th Cir. 2010). In the specific context of § 1983 claims of excessive

force, while a plaintiff need not show that each defendant officer “actively participated in

striking” her, an officer who has not directly inflicted harm may be held liable for

“fail[ing] to act to prevent the use of excessive force” by other officers only if “(1) the

officer observed or had reason to know that excessive force would be or was being used,

and (2) the officer had both the opportunity and the means to prevent the harm from

occurring.” Smoak v. Hall, 460 F.3d 768, 784 (6th Cir. 2006) (internal quotation marks

and citation omitted). Similarly, under the state-law theories of recovery advanced in

Plaintiff’s complaint, the imposition of liability against a given Defendant officer requires

a showing of this specific officer’s involvement in the unlawful conduct that caused

injury to Plaintiff. See, e.g., Garretson v. City of Madison Heights, 407 F.3d 789, 801

(6th Cir. 2005) (holding that one of the defendant officers did not act in a manner deemed

grossly negligent under Michigan law, where he was unaware of the plaintiff’s medical

condition or need for treatment); Hammond v. Northwest Airlines, No. 09-12331, 2010

WL 2836899, at *3 (E.D. Mich. July 19, 2010) (holding that a defendant flight attendant

could not be held liable for assault and battery, where there was no evidence that this

defendant “ever touched either plaintiff or put them in fear of a battery”).

Applying these principles of individual liability to the facts of this case, it is clear

that Plaintiff has failed to identify a basis in the record for going forward with her claims

against Defendants Coon, Lynch, Yorke, Guest, Hunt, and Proby. Defendant Lynch

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testified without contradiction that he had no contact whatsoever with Plaintiff. (See

Defendants’ Motion, Ex. 11, Lynch Dep. at 13, 15, 18.) Similarly, Defendant Proby

testified that she had no physical contact with Plaintiff, and that the only time she recalled

seeing Plaintiff was when she returned to the Genesee County Jail after the fact to

complain of the incidents giving rise to this suit. (See Defendants’ Motion, Ex. 4, Proby

Dep. at 31.) Defendant Hunt’s involvement was limited to his review, as a supervising

officer, of certain of the incident reports prepared by the officers who interacted with

Plaintiff, (see Defendants’ Motion, Exs. 1, 5), and he testified that he was not directly

involved with these incidents, could not say whether he was even in the vicinity of these

incidents, and could not recall having seen Plaintiff during her stay at the jail, (see

Defendants’ Motion, Ex. 2, Hunt Dep. at 33; Plaintiff’s Response, Ex. N, Hunt Dep. at

23).

Next, and as noted earlier, Defendant Coon testified without contradiction that he

was not working on the two days in mid-July of 2007 when Plaintiff was held at the

Genesee County Jail, and thus had no contact whatsoever with Plaintiff. (See

Defendants’ Motion, Ex. 9, Coon Dep. at 23-24, 33.) Finally, the only evidence of any

interaction between Plaintiff and Defendants Yorke and Guest is with respect to the

incident on the evening of July 12, 2007 when Plaintiff was placed in a restraint chair for

the first time. (See Defendants’ Motion, Ex. 1, 7/12/2007 Incident Report; see also

Defendants’ Reply, Ex. A, Cobb Aff. at ¶ 5 (stating that Defendant Guest did not work on

July 13, 2007, and that Defendant Yorke was assigned that day to a floor different from

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the one on which Plaintiff was held).) Since Plaintiff does not recall this initial placement

in a restraint chair, it follows that she cannot identify any mistreatment she suffered

during this incident.

Plaintiff’s efforts to avoid this outcome are unavailing, if not outright frivolous. 

With respect to Defendants Hunt and Proby, Plaintiff seizes upon their inability to rule

out the possibility that they might have seen Plaintiff at some point while she was held at

the jail, or that they (or Defendant Hunt, at least) might have been in the “general area” at

the time of the incidents giving rise to this suit. (See Plaintiff’s Response Br. at 12.) Yet,

any purported “questions of fact,” (id.), that might lurk within the deposition testimony of

these two Defendants clearly are not material, where nothing in this testimony (or

elsewhere in the record) could assist Plaintiff in making the necessary showing that either

of these Defendant officers had “the opportunity and the means to prevent” the use of

excessive force by their fellow officers. Smoak, 460 F.3d at 784. Still less is the Court

able to perceive any genuine issue of material fact arising from the testimony of

Defendant Lynch, who stated without contradiction that he had no contact whatsoever

with Plaintiff. It is well established that a properly supported summary judgment motion

cannot be defeated by the mere prospect that a trier of fact might choose to disbelieve the

moving party’s evidence refuting a necessary element of the plaintiff’s claim. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514 (1986).

Turning next to her claims against Defendant Coon, Plaintiff apparently suggests

that an issue of fact arises from her testimony that “Sergeant Coon” used excessive force

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when he grabbed her by the back of her neck, slammed her into the wall, grabbed her

arm, and threw her into the restraint chair. (See Plaintiff’s 3/25/2010 Dep. at 142-44;

Plaintiff’s 3/31/2010 Dep. at 143-45.) Plaintiff testified that her belief as to the identity

of this officer was based on her observation that he had sergeant stripes on his uniform

and the name “Coon” on his name tag, and she further recalled that he was AfricanAmerican. (Plaintiff’s 3/25/2010 Dep. at 142.) Yet, because this testimony is “blatantly

contradicted by the record” — including the unrefuted evidence that Defendant Coon is

white, was a lieutenant at the time of Plaintiff’s detention at the Genesee County Jail, and

did not work on the dates in question — the Court cannot “adopt [Plaintiff’s] version of

the facts for purposes of a ruling on a motion for summary judgment.” Scott v. Harris,

550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007). Indeed, in her response to Defendants’

motion, Plaintiff herself has conceded that her reference to “Sergeant Coon” at her

deposition evidently was mistaken, and that “it is possible” that she instead meant to refer

to Defendant Baylock. (Plaintiff’s Response Br. at 6 n.2.) Under this record, a trier of

fact could not reasonably conclude that Defendant Coon had any involvement in the

incidents giving rise to this suit.

Finally, with regard to Defendants Yorke and Guest, Plaintiff cites nothing in the

record to contradict the evidence that these two officers were involved only in the first

placement of Plaintiff in a restraint chair on the evening of July 12, 2007. Nor can

Plaintiff hope to overcome her own deposition testimony that she does not recall — and,

therefore, has no basis to challenge the legality of — this July 12 incident in which she

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was placed in a restraint chair for the first time. Accordingly, these two Defendants — as

well as Defendants Coon, Lynch, Hunt, and Proby — are entitled to an award of summary

judgment in their favor on the claims asserted against them in Plaintiff’s first amended

complaint.

C. Issues of Fact Remain as to Whether Plaintiff Was Subjected to Excessive

Force in Violation of Her Fourteenth Amendment Rights as a Pretrial

Detainee.

In Count I of her first amended complaint, Plaintiff has asserted a federal § 1983

claim against the Defendant officers arising from their alleged use of excessive force

against her during her 33-hour period of detention in the Genesee County Jail. In their

present motion, Defendants argue that this claim fails as a matter of law, where the degree

of force used by the Defendant officers purportedly was justified by Plaintiff’s acts of

resistance to the officers’ lawful commands and efforts to maintain prison discipline. As

discussed below, the Court finds that issues of fact preclude any resolution of this claim

as a matter of law.

While “[p]risoners are protected from the use of excessive force by the Eighth

Amendment,” the rights of a pretrial detainee, such as Plaintiff here, “stem from the Due

Process Clause of the Fourteenth Amendment, which protects a pretrial detainee from the

use of excessive force that amounts to punishment.” Griffin v. Hardrick, 604 F.3d 949,

953 (6th Cir. 2010) (internal quotation marks and citations omitted). The “law is

unsettled” as to whether the same standards govern the use of force on prisoners and

pretrial detainees, but it is clear that conduct that would violate the Eighth Amendment

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rights of a prisoner would also run afoul of the Fourteenth Amendment protections

accorded to a pretrial detainee. Griffin, 604 F.3d at 953. Under the Eighth Amendment

standard, the “core judicial inquiry” in assessing the use of force against an inmate is

“whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.

Ct. 995, 999 (1992); see also Griffin, 604 F.3d at 953-54 (applying this standard in a case

involving a pretrial detainee). Factors to consider in this inquiry include “the extent of

injury suffered by an inmate,” as well as “the need for application of force, the

relationship between that need and the amount of force used, the threat reasonably

perceived by the responsible officials, and any efforts made to temper the severity of a

forceful response.” Hudson, 503 U.S. at 7, 112 S. Ct. at 999 (internal quotation marks

and citation omitted).

Turning to the present motion, Defendants’ challenge to Plaintiff’s § 1983 claim of

excessive force is cursory at best. Defendants first offer a two-sentence, pro forma

statement of the pertinent legal principles. (Defendants’ Motion, Br. in Support at 11.) 

This is followed by a single paragraph in which Defendants present an extremely

abridged, cherry-picked summary of Plaintiff’s deposition testimony, and then close with

the conclusory assertion that “the use of force to bring Plaintiff into compliance was both

necessary and justified.” (Id.) This terse discussion is unaccompanied by any exposition

of the more precise legal principles and considerations that govern the use of force against

inmates, nor do Defendants cite any cases addressing analogous facts. In short,

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Defendants invite the Court to conclude that since Plaintiff “fail[ed] to follow verbal

commands” and, in their view, “actively resisted attempts to restrain her,” (id.), any force

used against her in the course of the incidents giving rise to this suit was lawful and

justified.

This abbreviated challenge, however, is belied by the evidentiary record. 

Plaintiff’s complaints of excessive force rest largely on two incidents, both on the second

day of her detention at the Genesee County Jail. In the first, which occurred at around

noon on July 13, 2007, Plaintiff was placed in a restraint chair after she reportedly

disregarded commands to cease her disruptive behavior, which included yelling out of her

isolation cell, banging on the cell door, and covering a safety camera in the cell. (See

Defendants’ Motion, Ex. 3, Incident Report.) Yet, while this behavior might have

warranted the use of a restraint chair, Defendants fail to address Plaintiff’s challenge to

the manner in which this process was carried out. In particular, Plaintiff testified that one

of the Defendant deputies grabbed her by the throat or neck and slammed her into a wall,

and that a number of deputies then grabbed her and threw her into the chair. (See

Plaintiff’s 3/25/2010 Dep. at 134, 137; Plaintiff’s 3/31/2010 Dep. at 134, 142-44.) 

Likewise, although Defendants point to Plaintiff’s testimony that she “resisted a little bit”

as she was strapped into the restraint chair, (Plaintiff’s 3/31/2010 Dep. at 21), she denied

flailing or thrashing her arms and legs around during this process, (see id. at 20-21), as

claimed in the incident report prepared by Defendant Schmieder, (see Defendants’

Motion, Ex. 3). In any event, any resistance as Plaintiff was being strapped into the chair

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8

As Defendants note, the record reveals that Plaintiff worked her right arm free after she

was strapped into the restraint chair. (See Defendants’ Motion, Ex. 3, Incident Report; see also

Plaintiff’s 3/25/2010 Dep. at 137-38.) Again, however, while this could serve as justification for

the ensuing decision to move Plaintiff to a restraint bed, it has no bearing on the lawfulness of

the force that had already been used in the process of putting Plaintiff into the restraint chair.

9

Notably, in the portion of Plaintiff’s deposition that Defendants cite in support of this

proposition, Plaintiff is referring to an earlier incident, and not the incident that occurred in the

evening of July 13. (See Plaintiff’s 3/25/2010 Dep. at 131.)

18

could not serve to justify the force used against her before the Defendant officers began

this process of strapping Plaintiff into the restraint chair.8

Defendants have even less to say about the second incident cited in support of

Plaintiff’s claim of excessive force. At around 8:30 p.m. on July 13, 2007, Plaintiff was

again engaged in uncooperative and disruptive behavior, causing her to be placed in a

restraint bed for a second time. Once again, even accepting Defendants’ contention that

the use of a restraint bed was warranted in light of Plaintiff’s “fail[ure] to follow verbal

commands,” (Defendants’ Motion, Br. in Support at 11),9

 Defendants utterly fail to

address Plaintiff’s complaints (and supporting testimony) as to the degree of force used in

this process of restraining her. Although the Defendant officers have stated in their

incident reports that force was applied after Plaintiff disregarded their commands to lie

down on the bed and instead turned on her side, attempted to get up, and resisted the

officers’ efforts by pushing and kicking, (see Defendants’ Motion, Ex. 5, Incident

Reports), Plaintiff has testified that a group of “[a]t least six” officers “call[ed] me

names” and “physically pick[ed] me up and forc[ed] me onto the bed,” during which time

she was simply “asking [the officers] why they were doing this” and requesting that they

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10As noted earlier, while Plaintiff’s rights as a pretrial detainee flow from the Due Process

Clause of the Fourteenth Amendment, rather than the Eighth Amendment, it is clear that a use of

force that violates the standards of the Eighth Amendment would also suffice to establish a

Fourteenth Amendment claim brought by a pretrial detainee. See Griffin, 604 F.3d at 953.

19

“please stop pulling on” her dislocated left arm, (Plaintiff’s 3/31/2010 Dep. at 114-17). 

Plaintiff further testified that “every time I lifted my head to ask what was going on,” she

felt an officer’s knee push down against her back and shoulder, causing her head to slam

against the bed. (Id. at 118-19.) In addition, Plaintiff testified that as the officers pinned

her face down on the bed, one of the officers administered OC spray directly into her eye

from a distance of only 2 1/2 inches, without any warning that this spray would be used if

she did not settle down. (Id. at 116-19.) She was then left face down on the bed with her

face lying “in a pool of Mace,” which caused Plaintiff to inhale the spray into her mouth

and nose. (Id. at 120.)

Viewing this record in a light most favorable to Plaintiff, the degree of force used

by the Defendant officers could be deemed under the case law to have exceeded the

legitimate purposes of maintaining prison discipline and keeping order, and to have

instead amounted to cruel and unusual punishment in violation of the Eighth

Amendment.10 In United States v. Budd, 496 F.3d 517, 531-32 (6th Cir. 2007), for

example, the Sixth Circuit found that the defendant officer violated an inmate’s Eighth

Amendment rights by slamming the inmate’s head against the steel frame of a window. 

Although the inmate was mouthing off at the time, there was no evidence that he was

engaging in physically threatening conduct, and the court reasoned that “‘being

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20

obnoxious’ does not justify the use of force.” Budd, 496 F.3d at 531-32. The court also

held that the defendant officer committed a further Eighth Amendment violation by

stepping on the inmate’s back with both feet after the inmate had been taken to the

ground, was compliant, and “did not verbally or physically threaten anyone.” 496 F.3d at

532.

Similarly, in United States v. Bunke, No. 09-3311, 412 F. App’x 760, 765-66 (6th

Cir. Jan. 19, 2011), the court found that an inmate had been subjected to cruel and

unusual punishment in violation of the Eighth Amendment, where the defendant officer

responded to the inmate’s “possibly obnoxious statements” by throwing him face down

on the floor with his arms underneath him, and where the defendant officer then delivered

“several hard blows to the [inmate’s] right side, [his] head, or both” as two officers sat on

his legs and four others “tried to pry his arms out from under him” in order to handcuff

him. In so ruling, the court reasoned that the inmate’s “resistance to being handcuffed did

not constitute a threatening situation under the circumstances,” in light of witness

testimony that the inmate was “pinned to the floor by six guards” and thus “posed no

threat.” Bunke, 412 F. App’x at 766; see also Bailey v. Golladay, No. 09-2411, 421 F.

App’x 579, 583 (6th Cir. May 3, 2011) (finding that the plaintiff prison inmate had raised

issues of fact as to his Eighth Amendment claim, in light of the evidence that the inmate’s

head was repeatedly banged against the steel entrance to a segregation unit “after he was

restrained and had become cooperative”); Hardy v. Vieta, No. 05-1024, 174 F. App’x

923, 924-25 (6th Cir. Apr. 4, 2006) (reversing the dismissal of a prisoner’s Eighth

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11To be sure, Defendants note that the record does not appear to support Plaintiff’s

assertion in her response brief that she was already strapped into the restraint bed at the time the

OC spray was administered. Nonetheless, the case law indicates that the use of pepper spray

may constitute excessive force once an individual is secured and poses no threat to the officers or

others in the area. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004).

21

Amendment claim, where his allegations indicated that the defendant officer was not

pursuing a “prison security measure” when he “purposefully and intentionally push[ed] a

steel door” on the prisoner and “smashed him between the steel door and a brick wall”).

Likewise, in this case, a trier of fact could reasonably conclude from the record

that Plaintiff’s verbal disruptions, acts of disobedience, and modest resistance did not

justify the degree of force used against her, where her testimony indicates that she was

not actively resisting the Defendant officers and did not pose any threat at the time of the

incidents giving rise to her claims. As to the first of these incidents, the record could be

viewed as establishing that one or more of the Defendant officers used wholly gratuitous

and unnecessary force by grabbing Plaintiff by the neck or throat, slamming her into a

wall, and then forcefully throwing her into a restraint chair. Regarding the incident later

that day, Plaintiff’s testimony, if credited by the trier of fact, would support the

conclusion that she was offering little or no physical resistance as six officers called her

offensive names, picked her up, and forced her into the restraint bed, and that her head

was repeatedly slammed against the bed each time she sought to lift it and ask what was

going on. This testimony could further be viewed as indicating that Plaintiff was pinned

down to the bed by several officers and no longer in a position to resist when one of the

Defendant officers administered OC spray directly into her eye.11 In light of this record,

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12Apart from contending that Plaintiff has failed as a matter of law to establish a violation

of her Fourteenth Amendment rights, Defendants suggest in the alternative that they are entitled

to qualified immunity against liability for any violation that might have occurred. Here again,

however, Defendants’ argument is so perfunctory as to amount to a waiver. Following a

boilerplate statement of the law of qualified immunity, Defendants offer a two-sentence

argument, without discussion of the facts or analysis of the pertinent case law, (i) that “their

conduct did not violate Plaintiff’s rights under the 14th Amendment,” and (ii) that, even if it did,

“the law did not put these Defendants on notice that their conduct in these circumstances

violated a clearly established right.” (Defendants’ Motion, Br. in Support at 10.) The Court has

now determined that questions of fact remain as to the first of these contentions. In so ruling, the

Court has drawn upon Supreme Court and Sixth Circuit precedents that set forth the clearly

established law governing the use of force against inmates and pretrial detainees. Accordingly,

the Court rejects Defendants’ cursory appeal to qualified immunity.

22

the Court finds that issues of fact remain as to whether Plaintiff was subjected to

excessive force in violation of her Fourteenth Amendment rights as a pretrial detainee.12

Nonetheless, Defendants suggest that Plaintiff cannot pursue her claims of

excessive force because there purportedly is “no evidence that any of the named

Defendants were present” during the incidents giving rise to these claims. (Defendants’

Reply Br. at 3.) This argument, however, overlooks the incident reports prepared by the

Defendant officers themselves. Regarding Plaintiff’s placement in a restraint chair at

around noon on July 13, 2007, the pertinent report reveals that Deputy Baylock and

Sergeant Schmieder were present during this incident. (See Defendants’ Motion, Ex. 3,

Incident Report.) As to Plaintiff’s placement in a restraint bed later that evening, the

reports of this incident show that Deputy Nelson, Deputy Gatica, Deputy Haskins,

Sergeant Ignash, and Sergeant Schmieder all participated in this effort. (See Defendants’

Motion, Ex. 5, Incident Reports.)

Under this record, Plaintiff’s claims of excessive force may go forward against the

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23

Defendant officers named in the incident reports, despite Plaintiff’s admitted inability to

identify precisely which Defendant officer engaged in which particular use of force. The

Sixth Circuit addressed a similar situation in Cole v. City of Dearborn, No. 10-2392, 448

F. App’x 571, 573 (6th Cir. Nov. 28, 2011), in which the two plaintiffs alleged that they

were subjected to excessive force as they lay face down on the ground. In light of the

plaintiffs’ allegations that both of the two defendant police officers on the scene had used

excessive force, the court found a sufficient basis for concluding that each of these

officers was “personally involved in the alleged excessive force,” despite the plaintiffs’

inability to “identify which officer engaged in what behavior.” Cole, 448 F. App’x at

576-77. Alternatively, even if all of the allegedly unlawful force could be attributed to

only one of the two defendant officers, the court found that the claim against the

remaining officer could go forward, where this officer “had reason to know that force was

being applied, and had the opportunity and means to stop his partner from engaging in

further force.” Cole, 448 F. App’x at 577; see also Binay, 601 F.3d at 650-51 (finding

issues of fact as to whether the two individual defendant police officers were personally

involved in the use of excessive force against the plaintiffs, observing that “the fact that

[the officers] wore masks during the raid made it exceedingly difficult for Plaintiffs to

identify with precision which officers engaged in which conduct”).

Likewise, in this case, the record establishes that six of the Defendant officers

were present at the incidents giving rise to Plaintiff’s claims of excessive force. This

record also would permit the conclusion that these six officers were involved, at least to

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24

some degree, in the infliction of force identified in Plaintiff’s deposition testimony. In

light of this evidence, the Court finds that issues of fact remain as to whether these six

Defendants either actively participated in the excessive force complained of by Plaintiff

or, at a minimum, had “the opportunity and the means to prevent the harm,” Smoak, 460

F.3d at 784 (internal quotation marks and citation omitted), that allegedly was being

inflicted by their fellow officers.

D. The Substantive Due Process Claim Asserted in Count II of Plaintiff’s

Complaint Does Not Provide a Separate Basis for Recovery, But Instead Is

Duplicative of the Fourteenth Amendment Claim Asserted in Count I.

Count II of Plaintiff’s first amended complaint, like Count I, rests upon the Due

Process Clause of the Fourteenth Amendment. (See First Amended Complaint at ¶¶ 36,

47.) Yet, while Count I focuses on the Defendant officers’ alleged use of excessive force,

(see id. at ¶¶ 36-37), Count II invokes more general notions of substantive due process

and features a much broader panoply of Fourteenth Amendment protections that the

Defendant officers allegedly abridged, including Plaintiff’s rights to freedom from

“deprivation of bodily security and integrity,” freedom from “conscience-shocking

behavior,” freedom from deprivation of privacy, privileges and immunities, and freedom

from excessive force, (see id. at ¶ 47). In their present motion, Defendants seek the

dismissal of the Fourteenth Amendment claim asserted in Count II, arguing that this claim

is largely duplicative of the claim asserted in Count I, and that it otherwise rests upon the

alleged abridgement of rights not afforded to pretrial detainees. The Court agrees.

In her response to Defendants’ motion, Plaintiff does not take issue with

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25

Defendants’ contention that many of the Fourteenth Amendment rights and protections

cited in Count II of her complaint — e.g., the right of privacy, as well as the protections

against deprivations of (unspecified) privileges and immunities — do not exist in a

custodial setting. Rather, Plaintiff contests only the assertion that her Count II

substantive due process claim is duplicative of the Fourteenth Amendment claim asserted

in Count I of her complaint. In particular, Plaintiff observes that the Fourteenth

Amendment has been interpreted as incorporating a substantive protection against

egregious official conduct that “shocks the conscience,” see, e.g., County of Sacramento

v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708, 1716-17 (1998), and she evidently suggests

that her Fourteenth Amendment claim in Count II is meant to encompass all of the

instances of allegedly conscience-shocking conduct by the Defendant officers that do not

fit within the rubric of excessive force.

Under the facts and circumstances presented here, however, the Court does not

view Plaintiff’s appeal to the “shocks the conscience” standard as providing an additional

avenue of recovery, beyond the relief Plaintiff may seek under Count I of her complaint. 

While this standard serves as the overarching measure for conduct that runs afoul of the

substantive component of the Fourteenth Amendment’s Due Process Clause, see Lewis,

523 U.S. at 846, 118 S. Ct. at 1717, the courts have adopted more particularized tests for

evaluating the activities of government officials in specific settings. In this case, for

example, Plaintiff’s claims arising from the use of force by the Defendant officers are

governed by a standard that calls for inquiry whether the degree of force used on a pretrial

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26

detainee was so excessive as to “amount[] to punishment.” Griffin, 604 F.3d at 953

(internal quotation marks and citation omitted). In contrast, to the extent Plaintiff alleges

that one or more of the Defendant officers failed to ensure that she was provided with

adequate treatment for a medical condition, such a claim entails a showing that

Defendants “acted with deliberate indifference to [Plaintiff’s] serious medical needs.” 

Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001).

Against this legal backdrop, Plaintiff has pointed to very little in the record that

would trigger scrutiny under the generalized “shocks the conscience” standard, and

nothing that could actually satisfy this standard. To the extent Plaintiff appeals to this

standard as governing her claim that she was strapped too tightly into the restraint chair,

(see Plaintiff’s Response Br. at 15), the Court believes that this complaint is more

properly analyzed under the excessive force standard addressed earlier, and is therefore

encompassed within the claim asserted in Count I. Next, to the extent Plaintiff complains

that she “constantly begged for medical attention” during her detention at the Genesee

County Jail but these pleas were ignored, (id.), these allegations would not trigger a

generalized “shocks the conscience” inquiry, but instead are governed by the “deliberate

indifference” standard, see Watkins, 273 F.3d at 686. Yet, beyond her cursory assertion

that her requests for medical attention were not heeded, Plaintiff has made no effort to

identify evidence in the record from which she could make the requisite showing of

deliberate indifference. Most notably, Plaintiff has not cited any evidence that her

medical needs were sufficiently serious to satisfy the objective prong of the “deliberate

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27

indifference” standard. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977

(1994) (internal quotations and citation omitted); see also Comstock v. McCrary, 273

F.3d 693, 702-03 (6th Cir. 2001).

This leaves only Plaintiff’s complaints that she was forced to wait for

approximately twenty minutes before she was taken to a shower and allowed to rinse the

OC spray from her eyes, and that much of her limited opportunity for showering was

wasted when a female deputy elected to “play[] a game of hot and cold” with her. 

(Plaintiff’s Response Br. at 15.) To the extent that Plaintiff cites this incident as an

additional example of a request for medical attention that went unheeded, Plaintiff again

has failed to show (or even argue) that her medical needs were sufficiently serious to

satisfy the “deliberate indifference” standard. As for the remaining aspects of this

incident, while the Court neither condones the alleged conduct of the female deputy nor

minimizes the discomfort and humiliation attendant to Plaintiff’s interaction with this

deputy, Plaintiff has made no effort to show that this conduct was such an egregious

abuse of power as to meet the demanding “shocks the conscience” standard. Certainly,

Plaintiff has not directed the Court’s attention to any case law in which analogous

conduct has been found to shock the conscience. Accordingly, the Court concludes that

the record in this case fails as a matter of law to support a recovery under the more

generalized theory of substantive due process advanced in Count II of the complaint, and

that each of Plaintiff’s viable Fourteenth Amendment claims in this case is more properly

pursued and analyzed under the excessive force theory asserted in Count I.

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28

E. Plaintiff Has Failed to Identify a Basis for Holding the Defendant County

Liable Under 42 U.S.C. § 1983 for Any Violation of Her Fourteenth

Amendment Rights by the Individual Defendant Officers.

The third and final federal claim asserted by Plaintiff in this case is set forth in

Count V of the first amended complaint. This count, like Counts I and II, arises under 42

U.S.C. § 1983, but Count V seeks to hold Defendant Genesee County liable for the

federal constitutional violations allegedly suffered by Plaintiff while she was detained at

the Genesee County Jail. Through their present motion, Defendants argue that Plaintiff

has failed as a matter of law to produce evidence that would support the imposition of

liability on the Defendant County under § 1983. The Court agrees.

As both sides recognize, Defendant Genesee County “cannot be held liable under §

1983 for an injury inflicted solely by its employees or agents.” Gregory v. Shelby

County, 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell v. Department of Social Servs.,

436 U.S. 658, 694, 98 S. Ct. 2018, 2037 (1978)). Instead, “[f]or liability to attach, there

must be execution of a government’s policy or custom which results in a constitutional

tort.” Gregory, 220 F.3d at 441. Moreover, Plaintiff must establish that “through its

deliberate conduct, the [County] was the ‘moving force’ behind” the violation of her

constitutional rights — that is, she “must show that the [County’s] action was taken with

the requisite degree of culpability and must demonstrate a direct causal link between the

[County’s] action and the deprivation of federal rights.” Gregory, 220 F.3d at 442

(quoting Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 405, 117 S.

Ct. 1382, 1389 (1997)).

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29

In this case, Plaintiff seeks to establish the requisite custom or policy by asserting

that the individual Defendant officers were inadequately trained and supervised. As to

the first of these contentions, the Supreme Court has recognized that a local governmental

unit, such as the Defendant County here, may be subject to § 1983 liability under a

“failure to train” theory. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct.

1197, 1204 (1989). The Court further emphasized, however, that this theory can succeed

“[o]nly where a municipality’s failure to train its employees in a relevant respect

evidences a ‘deliberate indifference’ to the rights of its inhabitants.” City of Canton, 489

U.S. at 389, 109 S. Ct. at 1205. This standard, in turn, can be met by showing that “in

light of the duties assigned to specific officers or employees the need for more or

different training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need.” 489 U.S. at 390, 109 S. Ct. at 1205. Finally, the

Court stated that “for liability to attach in this circumstance the identified deficiency in a

city’s training program must be closely related to the ultimate injury.” 489 U.S. at 391,

109 S. Ct. at 1206.

The record in this case not only fails to support Plaintiff’s claim of inadequate

training, but largely refutes it. Although Plaintiff points to the purported testimony of

“numerous” individual Defendants that “it had been years since they received any use of

force training,” (Plaintiff’s Response Br. at 18), the cited portions of the record reveal that

this assertion is somewhat misleading. Specifically, of the four Defendant officers

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13To be sure, the fourth Defendant officer whose testimony Plaintiff cites in support of

her “failure to train” theory, Defendant Lynch, stated that he had last received use of force

training in 2000. (See Plaintiff’s Response, Ex. E, Lynch Dep. at 17.) As discussed earlier,

however, there is no evidence of Defendant Lynch’s involvement in any of the incidents giving

rise to Plaintiff’s claims in this case. Consequently, any violations of Plaintiff’s constitutional

rights could not be attributed to deficiencies in Defendant Lynch’s training. 

30

identified by Plaintiff as giving such testimony, one (Defendant Gatica) could not recall

the last time she had received training regarding excessive force, but she estimated that it

was a “[c]ouple years ago.” (Plaintiff’s Response, Ex. F, Gatica Dep. at 9.) Similarly,

Defendant Haskins testified that he received use of force training in 2005, (Plaintiff’s

Response, Ex. I, Haskins Dep. at 13-14), roughly two years before the incidents in July of

2007 giving rise to Plaintiff’s claims. Still another of these four Defendants, Sergeant

Schmieder, testified that Genesee County officers were “constantly training” regarding

County policies and procedures, and he stated more specifically that the subject of use of

force was addressed “approximately three times a year.” (Plaintiff’s Response, Ex. H,

Schmieder Dep. at 12-13.)13

The picture that emerges from this record, then, is that the pertinent Defendant

officers were, in fact, trained in the appropriate use of force. To the extent Plaintiff

means to suggest, at least implicitly, that this training could or should have been

conducted more frequently, she has not even attempted to identify any basis upon which a

trier of fact could conclude that the need for more frequent training was obvious, or that

the existing training regimen was likely to result in the unlawful use of force against

detainees. See Miller v. Calhoun County, 408 F.3d 803, 816 (6th Cir. 2005) (“Mere

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allegations that an officer was improperly trained or that an injury could have been

avoided with better training are insufficient to prove liability.”). Most notably, Plaintiff

has not produced evidence of any prior incidents that might have alerted the Defendant

County to the need to reassess its program for training its officers in the proper use of

force. See Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (citing

evidence of prior instances of unconstitutional conduct as the ordinary means by which a

plaintiff may satisfy the deliberate indifference standard for municipal liability).

Likewise, while Plaintiff suggests that the Defendant officers received inadequate

training in the proper use of restraint chairs and beds, she has failed to identify any basis

in the record for drawing a causal connection between any such deficiency in training and

a violation of her constitutional rights as a pretrial detainee. Again, Plaintiff somewhat

overstates the record by asserting that two of the Defendant officers “testified that they

ha[d] not received training regarding restraint beds/chairs or that it ha[d] been years since

such training.” (Plaintiff’s Response Br. at 19.) In fact, one of the officers, Defendant

Gatica, testified that she received training on restraint chairs in 2002 and 2005, as well as

occasional updates. (Plaintiff’s Response, Ex. F, Gatica Dep. at 37-38.) The second

officer, Defendant Baylock, testified that he was trained by his fellow deputies in the use

of a restraint bed and restraint chair, although he did not specify (and was not asked)

when this training had occurred. (Plaintiff’s Response, Ex. G, Baylock Dep. at 18-19.) 

Under this record, Plaintiff’s challenge to the Defendant officers’ training in the use of

restraint chairs and beds seemingly must rest upon the notion that this training should

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14As noted above, summary judgment has been awarded in favor of Defendant Lynch on

the claims asserted against him, in light of the absence of evidence that he had any contact with

Plaintiff during her detention at the Genesee County Jail. Thus, any purported shortfall in the

Defendant County’s supervision of Defendant Lynch could not have contributed to Plaintiff’s

alleged constitutional injuries.

32

have been conducted more frequently. Yet, she once again has not supplied (or even

suggested) any basis upon which a trier of fact could conclude that this purported

deficiency was obvious or likely to result in violations of the constitutional rights of

detainees. Accordingly, Plaintiff has failed to identify any grounds in the record for

holding the Defendant County liable under a “failure to train” theory.

Plaintiff’s second theory of County liability is that the Defendant officers were

inadequately supervised, but this claim, too, is undermined — and, in fact, defeated — by

the evidentiary record. In support of her assertion that the Defendant County has “fail[ed]

to review its police officer[s’] performance on the job,” thereby “allow[ing] its officers to

continuously violate citizens’ constitutional rights,” (Plaintiff’s Response Br. at 19),

Plaintiff cites the deposition testimony of two Defendant officers. One of these officers,

Sergeant Schmieder, testified that written performance reviews were not done on a

“consistent basis,” and that an officer might perhaps go a couple of years without one. 

(Plaintiff’s Response, Ex. H, Schmieder Dep. at 12.) The second officer, Defendant

Lynch, recalled that he had received his most recent performance evaluation “maybe six

years ago.” (Plaintiff’s Response, Ex. E, Lynch Dep. at 10.)14 In contrast, Defendants’

reply brief is accompanied by a chart revealing that each of the six Defendant officers

who interacted with Plaintiff during her July 2007 detention at the Genesee County Jail

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33

— i.e., Defendants Gatica, Baylock, Schmeider, Haskins, Ignash, and Nelson — received

written performance appraisals within an 18-month period prior to the incidents giving

rise to this case. (See Defendants’ Reply, Ex. B.)

Under this record, Plaintiff cannot show that the Defendant County’s practice of

conducting performance reviews of its officers was so deficient as to evidence the

County’s deliberate indifference to the violation of Plaintiff’s constitutional rights as a

pretrial detainee. In the case cited by Plaintiff in support of her “failure to supervise”

theory, the record was “devoid of any performance evaluations” of one of the defendant

officers over his 32 years of service, despite complaints about this officer’s performance

by citizens and fellow officers. Kammeyer v. City of Sharonville, No. 01-00649, 2006

WL 1133241, at *11 (S.D. Ohio Apr. 26, 2006). Here, in contrast, the six Defendant

officers who were involved in Plaintiff’s detention had each received a written

performance review within 18 months prior to this detention. Moreover, despite her

wholly unsupported and irresponsible charge of “continuous[]” constitutional violations

committed by the Defendant County’s officers, Plaintiff has utterly failed to identify any

evidentiary basis for concluding that a more frequent or otherwise different practice of

conducting performance reviews would have uncovered misconduct by any of the

pertinent six officers — much less a form of misconduct similar to that claimed by

Plaintiff here — such that the Defendant County would have been on notice of the need

for additional or closer supervision. See Marcilis v. Redford Township, 757 F. Supp.2d

663, 682 (E.D. Mich. 2010) (distinguishing Kammeyer on this ground); Garigiola v. City

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34

of Brighton, No. 08-13763, 2010 WL 104605, at *6 (E.D. Mich. Jan. 7, 2010) (same). 

Accordingly, the Court readily concludes that Plaintiff’s “failure to supervise” theory of

liability against the Defendant County, like her “failure to train” theory, lacks support in

the evidentiary record.

F. Issues of Fact Remain as to Plaintiff’s State-Law Claims Against the Six

Defendant Officers Involved in Her July 2007 Detention at the Genesee

County Jail.

Finally, in Counts III and IV of her first amended complaint, Plaintiff has asserted

state-law claims of assault and battery and gross negligence against the twelve individual

officers named as Defendants. As discussed earlier, the claims against six of these

Defendant officers — i.e., Defendants Coon, Lynch, Yorke, Guest, Hunt, and Proby —

cannot go forward, in light of the absence of evidence of their involvement in the

incidents giving rise to this case. As to the remaining six officers, Defendants argue in

the present motion that Plaintiff’s state-law claims against these officers are both legally

deficient and factually unsupported. The Court disagrees, on much the same grounds

cited above in the Court’s analysis of Plaintiff’s federal § 1983 claims against these six

officers.

First, as to Plaintiff’s state-law claim of assault and battery, Defendants contend

that the record is devoid of evidence that the Defendant officers acted with the requisite

intent to harm Plaintiff, and that this record instead discloses that the officers used force

only in a lawful effort to overcome Plaintiff’s resistance as the officers attempted to

restrain her. Yet, as discussed earlier, Plaintiff has identified genuine issues of fact as to

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whether she had ceased any active resistance to the Defendant officers and no longer

posed any threat to prison security or discipline at the time of the incidents giving rise to

her claims. It follows that Plaintiff’s state-law claim of assault and battery cannot be

resolved as a matter of law under the present record, but instead must be left for the trier

of fact to decide.

Next, Defendants argue that Plaintiff’s claim of gross negligence impermissibly

rests upon alleged conduct that is not merely grossly negligent, but instead has been

characterized as intentional in Plaintiff’s complaint and in her deposition testimony. As

Plaintiff observes, however, the Sixth Circuit has permitted plaintiffs to simultaneously

pursue a claim of excessive force under § 1983 and a gross negligence claim under

Michigan law, noting that the latter claim may go forward even if it is determined that the

defendant police officers did not act intentionally, but only recklessly. See Kostrzewa v.

City of Troy, 247 F.3d 633, 642-43 (6th Cir. 2001). Likewise, in this case, if Plaintiff is

unable to persuade the trier of fact that one or more of the Defendant officers violated her

federal constitutional rights through the intentional infliction of excessive force

amounting to punishment, this would not foreclose the possibility that she could establish

conduct amounting to gross negligence under Michigan law. Accordingly, Plaintiff may

continue to pursue her state-law claim of gross negligence against the six Defendant

officers who participated in the alleged incidents giving rise to this case. 

IV. CONCLUSION

For the reasons set forth above,

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NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’ June 1, 2010

motion for summary judgment (docket #115) is GRANTED IN PART, as to Plaintiff’s

claims against Defendants Genesee County, Coon, Lynch, Yorke, Guest, Hunt, and

Proby, and as to the federal substantive due process claim asserted in Count II of

Plaintiff’s first amended complaint. In all other respects, Defendants’ motion for

summary judgment is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: June 21, 2012

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

on June 21, 2012, by electronic and/or ordinary mail.

s/Ruth A. Gunther 

Case Manager

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