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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UNPUBLISHED 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: CAVANAGH, P.J., and SAAD and FORT HOOD, JJ. 

PER CURIAM. 

 In Docket No. 327305, defendant appeals by leave granted an order 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 Liability Act (GTLA), MCL 

691.1401 et seq. We reverse and remand for entry of judgment in defendant’s favor. 

 Plaintiff and defendant were correctional officers and suffered injuries when they were 

assaulted by a prisoner after his restraints were removed on defendant’s order. On the day of the 

assault, defendant was plaintiff’s shift commander and it was known that the prisoner had 

assaulted another officer earlier that day and had also attempted to swallow a razor. The prisoner 

had been restrained by leg irons and a belly chain, and was wearing a bite mask to prevent him 

from biting people. 

 Subsequently, plaintiff brought this 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 consequence of defendant’s failure to follow established prison 

protocols and his order to remove the prisoner’s restraints. In Count II, plaintiff alleged an 

intentional tort under MCL 418.131(1) (exception to the exclusive remedy provision of the 

WDCA) and MCL 691.1407(3) (exception to governmental immunity under the GTLA) 

premised on defendant ordering plaintiff to remove the prisoner’s restraints in violation of 

established prison protocols designed to maintain safety. In Count III, plaintiff alleged a claim 

of intentional infliction of emotional distress, stating: “Defendant’s conduct, by intentionally, 

unreasonably, and deliberately refusing to follow established correctional facility protocol went 

beyond all possible bounds of decency and was intended to, and did, cause emotional distress.” 
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 Defendant removed the action to federal court based on the § 1983 claim, and sought 

summary judgment of the claim. The federal district court granted 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 District Court for the Eastern District 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 matter was remanded to the trial 

court.1

 Id. at 14. 

 After remand to the trial court, defendant moved for summary disposition of the 

intentional tort and intentional infliction of emotional distress claims pursuant to MCR 

2.116(C)(7) (barred claim) and (C)(10) (no genuine issue of material fact). Defendant argued 

that the federal court’s determination that the facts and evidence established “at best, a claim 

sounding in negligence,” was binding on the trial court and dispositive of plaintiff’s intentional 

tort claims by application of collateral estoppel. That is, plaintiff’s claims were barred by the 

exclusive remedy provision of the WDCA because, at most, plaintiff could only establish 

negligence. Further, defendant argued 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 within the course of his 

employment as a correctional officer, in good faith—not maliciously—and was performing a 

discretionary act, i.e., an act that required decision-making and the exercise of judgment with 

regard to restraining a prisoner. Defendant also argued that plaintiff’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 that collateral estoppel 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 opportunity to litigate the state-law claims. 

Further, plaintiff argued, he had a viable claim under the intentional tort exception to the 

exclusive remedy provision of the WDCA because genuine issues of 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, he 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 issues of material fact existed as to 

whether defendant’s actions were extreme and outrageous to an average member of the 

community. In his supplemental brief, plaintiff reiterated that defendant committed an 

intentional tort—which is excepted from the WDCA exclusive remedy provision—because he 

ordered the removal of the prisoner’s restraints although an injury was certain to occur 

 

1

 The Sixth Circuit Court of Appeals subsequently affirmed the district 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). 
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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 motion for summary 

disposition, holding that the federal court remanded the state-law claims to the trial court; 

collateral estoppel did not apply; discovery had not been conducted; and there were fact issues 

that needed “to both be discovered and presented to the trier of fact.” Accordingly, the trial court 

entered an order denying defendant’s motion for summary disposition pursuant to MCR 

2.116(C)(7). 

 Thereafter, as set forth above, defendant filed his application for leave to appeal, as well 

as his appeal by right, challenging the order denying his motion for summary disposition. This 

Court entered an order granting defendant’s application for leave 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 should have been granted 

because the federal courts’ opinions holding that he had no intent to injure plaintiff and, at worst, 

acted negligently, were binding on the trial court by application of collateral estoppel; thus, 

plaintiff’s intentional tort claims were barred by the exclusive remedy provision of the WDCA. 

We agree. 

 We review de novo a trial court’s decision on a motion for summary disposition. Davis v 

Detroit, 269 Mich App 376, 378; 711 NW2d 462 (2006). A court reviewing 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-pleaded 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) if 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 relitigation 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 was actually and necessarily 

determined in the prior proceeding.” Ditmore v Michalik, 244 Mich App 569, 577; 625 NW2d 

462 (2001). Collateral estoppel promotes comity between Michigan 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 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.” Id. at 94. Collateral estoppel 

prevents inconsistent decisions and encourages reliance on adjudication. Monat v State Farm Ins 

Co, 469 Mich 679, 692-693; 677 NW2d 843 (2004) (citation omitted). 
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 Generally, for collateral estoppel to apply three elements must 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 parties must have had 

a full [and fair] opportunity to litigate the issue; and (3) there 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 omitted).] 

 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 protocols and when he ordered 

plaintiff to remove the prisoner’s restraints. Defendant had moved for summary judgment 

raising the defense of qualified immunity, which is available to 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 plaintiff’s § 1983 claim. In that 

regard, the federal district court noted that it must first determine whether the challenged conduct 

violated a constitutional right. Pickle, unpub op of ED Mich; slip op at 8-9. And to give 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 facts 

alleged by plaintiff “amount to, at best, a case sounding in negligence and not a constitutional 

violation under § 1983.” Id. at 12. Thus, defendant was entitled to qualified immunity because 

his challenged conduct did not violate plaintiff’s constitutional right, i.e., plaintiff did not 

demonstrate that defendant had a specific intent to injure to him or that he even acted with 

deliberate indifference. Id. at 11-12. Subsequently, the Sixth Circuit affirmed that defendant’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, in 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. 

 Similarly, the WDCA provides that it is the exclusive remedy for 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 regard, MCL 

418.131(1) provides: 

 An intentional tort shall exist only when an employee is injured as a result 

of a deliberate act of the employer and the employer specifically intended an 

injury. An employer shall be deemed to have intended to injure if the employer 

had actual knowledge that an injury was certain to occur and willfully 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 application of qualified immunity and 

the application of the WDCA’s exclusive remedy provision was whether defendant acted with 

the intent to injure plaintiff. While there is some language disparity between the standards, they 
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are substantially similar in substance for us to conclude that the issue whether defendant intended 

to injure plaintiff was conclusively decided and, thus, defensive 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 defendant did not act with the 

specific intent to injure plaintiff. Likewise, an intent to injure cannot be inferred 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 that 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—was 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 litigate the issue, and both parties were 

mutually estopped by the federal decisions. See id. Therefore, the doctrine of collateral estoppel 

barred plaintiff from relitigating the issue whether defendant specifically intended to injure him 

for purposes of the intentional tort 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 jurisdiction over state-law claims does not 

preclude the application of collateral estoppel because collateral 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 intent to injure is sufficient to invoke collateral estoppel. 

 Based on our determination that collateral estoppel bars plaintiff’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 consider 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 during the course of employment and the employee 

was acting, or reasonably believed that he was acting, within the scope of his 

authority, 

(b) the acts were undertaken in good faith, or were not undertaken 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, but challenges the second and 

third elements. However, plaintiff is barred by collateral estoppel from successfully arguing that 

defendant acted with malice. The federal district court held that defendant did not intend to 

injure plaintiff; that defendant did not engage in “arbitrary conduct intentionally designed to 

punish” plaintiff; that defendant did not engage in conscious-shocking behavior; and that 
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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 actions were negligent. Id. The Sixth 

Circuit affirmed, finding that the facts as alleged by plaintiff 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 defendant did 

not act with intent to harm or with deliberate indifference to plaintiff’s rights, courts are 

collaterally estopped from finding that defendant acted with malice. 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 second of the Ross elements is satisfied. 

See Odom, 482 Mich at 480. 

 Further, plaintiff is barred by collateral estoppel from successfully arguing that 

defendant’s acts were ministerial as opposed to discretionary. The federal courts held that 

defendant was entitled to qualified immunity. “Under the doctrine of qualified immunity, 

governmental officials, including police officers, are immune from 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 actions 

performed by defendant were discretionary in nature, not ministerial, and the third Ross element 

was satisfied. Accordingly, defendant was also entitled to qualified immunity under the GTLA 

and the trial court erred in denying his motion for summary disposition. 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