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### STATE OF MICHIGAN

COURT OF APPEALS

MICHAEL SCOTT PICKLE,

Plaintiff-Appellee, UNPUBLISHED September 15, 2016

v Nos. 327305; 327312
Lenawee Circuit Court CAPTAIN KEITH MCCONNELL, LC No. 13-004913-NO

Defendant-Appellant.

Before: C AVANAGH , P.J., and S AAD and F ORT H OOD , JJ.

P ER C URIAM

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In Docket No. 327305, defendant appeals by leave granted an or der denying his motion for summary disposition which asserted that plaintiff’s claims were barred by the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq . In Docket No. 327312, defendant appeals by right the same order denying his motion for summary disposition which also asserted that he was entitled to immunity under the Governmental Tort Li ability Act (GTLA), MCL
691.1401 et seq . We reverse and remand for ent ry of judgment in defendant’s f avor.

Plaintiff and defendant were correctional officers and suffere d injuries when they were assaulted by a prisoner after his restraints were removed on de fendant’s order. On the day of the assault, defendant was plainti ff’s shift commander and it was k nown that the prisoner had
assaulted another officer earlie r that day and had also attempt ed to swallow a ra zor. The prisoner had been restrained by leg irons and a belly chain, and was wea ring a bite mask to prevent him from biting people.

Subsequently, plaintiff brought t his action against defendant. In Count I, plaintiff alleged a violation of 42 USC § 1983, averring that his constitutional right to be free from state-created dangers was violated as a conseque nce of defendant’s failure to follow established prison protocols and his order to remove the prisoner’s restraints. I n Count II, plaintiff alleged an intentional tort under MCL 418.131( 1) (exception to the exclusi ve remedy provision of the WDCA) and MCL 691.1407(3) (exception to governmental immunity u nder the GTLA) premised on defendant ordering pl aintiff to remove the prisoner ’s restraints in violation of established prison protocols designed to maintain safety. In C ount III, plaintiff alleged a claim of intentional infliction of emotional distress, stating: “Def endant’s conduct, by intentionally, unreasonably, and deliberately refusing to follow established c orrectional facility protocol went beyond all possible bounds of decency and was intended to, and did, cause emotional distress.”-2- Defendant removed the action to federal court based on the § 1 983 claim, and sought summary judgment of the claim. Th e federal district court gran ted the motion, holding that defendant was entitled to qualified immunity because the facts alleged by plaintiff did not
demonstrate that defendant had a specific intent to injure him; thus, the case sounded in negligence and not a constitutional violation under § 1983. Pickle v McConnell , unpublished opinion of the United States Distr ict Court for the Eastern Dis trict of Michigan, issued June 27, 2014 (Docket No. 14-10208); slip op 11-12. After declining to exercise supplemental jurisdiction over plaintiff’s remaining state-law claims, the m atter was remanded to the trial

court. 1 Id. at 14.

After remand to the trial court, defendant moved for summary d isposition of the
intentional tort and intentional infliction of emotional distre ss claims pursuant to MCR 2.116(C)(7) (barred claim) and (C)(10) (no genuine issue of mat erial fact). Defendant argued
that the federal court’s determination that the facts and evide nce established “at best, a claim sounding in negligence,” was bindin g on the trial court and dis positive of plaintiff’s intentional tort claims by application of c ollateral estoppel. That is, pl aintiff’s claims were barred by the exclusive remedy provision of the WDCA because, at most, plaint iff could only establish negligence. Further, defendant a rgued that he was entitled to qualified immunity under the
GTLA as set forth in Ross v Consumers Power Co (On Rehearing) , 420 Mich 567; 363 NW2d 641 (1984). 2 That is, when plaintiff was injured, defendant was acting wit hin the course of his employment as a correctional officer, in good faith—not malicio usly—and was performing a discretionary act, i.e., an act that required decision-making a nd the exercise of judgment with regard to restraining a prisone r. Defendant also argued that p laintiff’s intentional infliction of
emotional distress claim must be dismissed because defendant’s conduct was at most negligent, not extreme and outrageous.

Plaintiff responded, arguing thatcollateral es toppel did not apply because the federal district court specifically noted that it was not ruling on the state-law claims, and no discovery had occurred so plaintiff did not have a full and fair opportun ity to litigate the state-law claims. Further, plaintiff argued, he had a viable claim under the inte ntional tort exception to the exclusive remedy provision of the WDCA because genuine issues o f material fact existed with regard to whether defendant had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. And, plaintiff argued, h e had a viable intentional tort claim under the GTLA because defendant was his superior officer and was performing a ministerial act when he issued the order to remove the prisoner ’s restraints in reckless disregard and indifference for plaintiff’s safety. Moreover, genuine iss ues of material fact existed as to whether defendant’s actions were extreme and outrageous to an a verage member of the community. In his supplemental brief, plaintiff reiterated tha t defendant committed an intentional tort—which is except ed from the WDCA exclusive reme dy provision—because he ordered the removal of the priso ner’s restraints although an in jury was certain to occur

1 The Sixth Circuit Court of App eals subsequently affirmed the d istrict court’s decision. Pickle v
McConnell , 592 Fed Appx 493, 494 (CA 6, 2015).

2 See Odom v Wayne Co , 482 Mich 459, 461-462; 760 NW2d 217 (2008).-3- considering both the prisoner’s history of assaulting officers and the violations of the prison’s established procedures.

Following oral arguments, the trial court denied defendant’s m otion for summary disposition, holding that the f ederal court remanded the state- law claims to the trial court; collateral estoppel did not apply; discovery had not been condu cted; and there were fact issues
that needed “to both be discovere d and presented to the trier o f fact.” Accordingl y, the trial court entered an order denying defendant’s motion for summary disposi tion pursuant to MCR 2.116(C)(7).

Thereafter, as set forth above, defendant filed his applicatio n for leave to appeal, as well as his appeal by right, challenging the order denying his motio n for summary disposition. This Court entered an order granting defendant’s application for lea ve to appeal and consolidated it with defendant’s appeal by right. Pickle v McConnell , unpublished order of the Court of Appeals, entered October 2, 2015 (Docket Nos. 327305, 327312).

Defendant argues that his motion for summary disposition shoul d have been granted because the federal courts’ opinions holding that he had no int ent to injure plaintiff and, at worst, acted negligently, were binding on the trial court by applicati on of collateral estoppel; thus, plaintiff’s intentional tort claims were barred by the exclusiv e remedy provision of the WDCA. We agree.

We review de novo a trial court’ s decision on a motion for sum mary disposition. Davis v
Detroit , 269 Mich App 376, 378; 711 NW2d 462 (2006). A court reviewin g a motion brought under MCR 2.116(C)(7) “considers the affidavits, pleadings, and other documentary evidence presented by the parties and accepts the plaintiff’s well-plead ed allegations as true, except those contradicted by documentary evidence.” McLean v Dearborn , 302 Mich App 68, 72-73; 836 NW2d 916 (2013). “A motion for summary disposition under this subrule does not test the merits of a claim but rather certain defenses which may make a trial on the merits unnecessary.” DMI Design & Mfg, Inc v Adac Plastics, Inc , 165 Mich App 205, 208; 418 NW2d 386 (1987). Thus, summary disposition may be granted under subrule (C)(7) i f a claim is barred by collateral estoppel based on a prior judgment. Eaton Co Bd of Rd Comm’rs v Schultz , 205 Mich App 371, 375-376; 521 NW2d 847 (1994). The applicability of collateral estoppel is also reviewed de

novo. Estes v Titus , 481 Mich 573, 579; 751 NW2d 493 (2008).

“Collateral estoppel, or issue preclusion, precludes relitigat ion of an issue in a subsequent, different cause of action between the same parties or their privies when the prior proceeding culminated in a valid final judgment and the issue w as actually and necessarily determined in the prior proceeding.” Ditmore v Michalik , 244 Mich App 569, 577; 625 NW2d 462 (2001). Collateral estoppel pr omotes comity between Michig an and federal courts and reduces unnecessary litigation. Allen v McCurry , 449 US 90, 95-96; 101 S Ct 411; 66 L Ed 2d 308 (1980). “Under collateral estoppel, once a court has decid ed an issue of fact or law necessary to its judgment, that decision may preclude relitigat ion of the issue in a suit on a
different cause of action involvi ng a party to the first case.” Id. at 94. Collateral estoppel prevents inconsistent decisions and encourages reliance on adju dication. Monat v State Farm Ins
Co , 469 Mich 679, 692-693; 677 NW2d 843 (2004) (citation omitted)

.-4- Generally, for collateral est oppel to apply three elements mus t be satisfied: (1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same part ies must have had a full [and fair] opportunity to l itigate the issue; and (3) th ere must be mutuality of estoppel. [ Id . at 682-684, quoting Storey v Meijer, Inc , 431 Mich 368, 373 n 3; 429 NW2d 169 (1988) (internal quotation marks and footnote omit ted).]

In this case, the federal district court dismissed plaintiff’s § 1983 claim which was based on defendant’s alleged violation of his substantive due process right to be free from state-created dangers when defendant failed to follow established prison prot ocols and when he ordered plaintiff to remove the prisone r’s restraints. Defendant had m oved for summary judgment raising the defense of qualified immunity, which is available t o a government official unless, in the course of performing a discretionary function, a plaintiff’ s clearly established constitutional right was violated. Jones v Byrnes , 585 F3d 971, 974 (CA 6, 2009). Thus, the issue was whether defendant was entitled to qualified immunity as to plai ntiff’s § 1983 claim. In that regard, the federal district c ourt noted that it must first det ermine whether the challenged conduct violated a constitutional right. Pickle , unpub op of ED Mi ch; slip op at 8-9. And to g ive rise to a substantive due process violation, plaintiff had to demonstrate an intentional injury or arbitrary conduct designed to punish. Id . at 11 (citations omitted). The court concluded that the fact s alleged by plaintiff “amount to, at best, a case sounding in ne gligence and not a constitutional violation under § 1983.” Id . at 12. Thus, defendant was entitled to qualified immunity be cause his challenged conduct did not violate plaintiff’s constitution al right, i.e., pl aintiff did not
demonstrate that defendant had a specific intent to injure to h im or that he even acted with
deliberate indifference. Id . at 11-12. Subsequently, the Sixth Circuit affirmed that defe ndant’s “conduct identified in the record and complaint simply does not suggest intent to injure [plaintiff].” Pickle v McConnell , 592 Fed Appx 493, 494 (CA 6, 2015). The Sixth Circuit noted that defendant’s attempt to help plaintiff during the attack, i n which he also suffered injury, strongly suggested the opposite intent. Id . And, the court held, even if defendant failed to adhere to prison security procedures, such errors were “likely mere negligence and gross negligence at worst.” Id

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Similarly, the WDCA provides that it is the exclusive remedy f or employees injured during the course of their employment, even as a consequence of the negligent acts of the employer or a coemployee, unless the intentional tort exception applies. See MCL 418.131(1);

Harris v Vernier , 242 Mich App 306, 309-310; 617 NW2d 764 (2000). In that rega rd, MCL 418.131(1) provides:

An intentional tort shall exist only when an employee is injur ed as a result of a deliberate act of the empl oyer and the employer specifical ly intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an inj ury was certain to occur and wi llfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court.

The dispositive fact issue, then, with respect to both the appl ication of qualified immunity and the application of the WDCA’s exclusive remedy provision was wh ether defendant acted with the intent to injure plaintiff. While there is some language d isparity between the standards, they-5- are substantially similar in substance for us to conclude that the issue whether defendant intended to injure plaintiff was conclusi vely decided and, thus, defensi ve collateral estoppel applies. See
Barrow v Pritchard , 235 Mich App 478, 484-485; 597 NW2d 853 (1999).

As discussed above, the federal courts clearly found that defe ndant did not act with the specific intent to injure plaintiff. Likewise, an intent to in jure cannot be inf erred because the
federal courts also determined that defendant’s actions sounded in negligence and that he did not act with “deliberate indifference,” which negates a finding tha t defendant willfully disregarded actual knowledge that an injury was certain to occur. See Travis v Dreis & Krump Mfg Co

, 453 Mich 149, 178-179; 551 NW2d 132 (1996). Therefore, a question of fact essential to the federal judgment—whether defendant had the intent to injure plaintiff—w as actually litigated and determined by a valid and final judgment. See Monat , 469 Mich at 682-684. Further, both plaintiff and defendant had a full and fair opportunity to liti gate the issue, and both parties were mutually estopped by the fe deral decisions. See id . Therefore, the doctrin e of collateral estoppel barred plaintiff from relitigating the issue whether defendant specifically intended to injure him for purposes of the intentional to rt exception to the exclusive remedy provision of the WDCA.

While plaintiff argues that the federal district court did not decide the state-law claims, a refusal of a federal court to exercise supplemental jurisdictio n over state-law claims does not preclude the application of colla teral estoppel because collate ral estoppel is issue preclusion and

not claim preclusion. See Ditmore , 244 Mich App at 577. Thus, the fact that the federal courts
decided the issue of defendant’s i ntent to injure is sufficient to invoke collateral estoppel.

Based on our determination that collateral estoppel bars plain tiff’s intentional tort claims, which are all premised on defendant’s alleged failure to follow established prison protocols and his order to remove the prisoner’s restraints, we need not cons ider whether the trial court also erred in denying defendant’s motion for summary disposition on the basis of governmental immunity. Nevertheless, we reviewed the trial court’s decision and conclude that the trial court erred. As explained in Odom v Wayne Co , 482 Mich 459, 480; 760 NW2d 217 (2008), a governmental employee may be immune for intentional torts if he satisfies the following
elements:

(a) The acts were undertaken dur ing the course of employment a nd the employee was acting, or reasonably believed that he was acting, within t he scope of his authority,

(b) the acts were undertaken i n good faith, or were not undert aken with malice,
and

(c) the acts were discretionary, as opposed to ministerial. [ Id ., citing Ross , 420 Mich at 633-634.]

In this case, plaintiff does not contest the first element, bu t challenges the second and third elements. However, plaintiff is barred by collateral est oppel from successfully arguing that
defendant acted with malice. The federal district court held t hat defendant did not intend to injure plaintiff; that defendant did not engage in “arbitrary c onduct intentionally designed to punish” plaintiff; that defendant did not engage in conscious-s hocking behavior; and that-6- defendant did not act with deliberate indifference to plaintiff ’s rights. Pickle , unpub op of ED Mich; slip op at 11-12. It held that, at best, defendant’s act ions were negligent. Id. The Sixth Circuit affirmed, finding that the facts as alleged by plaintif f did not suggest that defendant had the intent to injure plaintiff. Pickle , 592 Fed Appx at 494. The Sixth Circuit held that
defendant’s failure to adhere to prison security procedures was “likely mere negligence and gross negligence at worst.” Id. Because there is a previous final judgment holding that defen dant did
not act with intent to harm or with deliberate indifference to plaintiff’s rights, courts are collaterally estopped from findi ng that defendant acted with ma lice. See Allen , 449 US at 94 (“Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.”). Thus, the secon d of the Ross elements is satisfied.
See Odom , 482 Mich at 480.

Further, plaintiff is barred by collateral estoppel from succe ssfully arguing that
defendant’s acts were ministeri al as opposed to discretionary. The federal courts held that defendant was entitled to qualified immunity. “Under the doctr ine of qualified immunity, governmental officials, including police officers, are immune f rom civil liability unless, in the course of performing their discretionary functions, they violate the plaintiff’s clearly established constitutional rights.” Pickle , unpub op of ED Mich; slip op at 2. Thus, the challenged acti ons performed by defendant were discretionary in nature, not minist erial, and the third Ross element was satisfied. Accordingly, defendant was also entitled to qua lified immunity under the GTLA and the trial court erred in denying his motion for summary dis position. See Odom , 482 Mich at
473.

Reversed and remanded to the trial court for entry of judgment in defendant’s favor. We do not retain jurisdiction.

/s/ Mark J. Cavanagh /s/ Henry William Saad
/s/ Karen M. Fort Hood