United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 
DAVID R. GRAND, Magistrate Judge.
Before the court is Defendants' motion for summary judgment . An Order of Reference was entered on August 7, 2014, referring all pretrial matters to the undersigned pursuant to 28 U.S.C. § 636(b). . Having reviewed the pleadings and other papers on file, the Court finds that the facts and legal issues are adequately presented in the parties' briefs and on the record, and it declines to order a hearing at this time.
For the reasons set forth below, the Court RECOMMENDS that Defendants Steven Scarpino, Scott Goings, and Jackson City Police Department's Motion for Summary Judgment  be GRANTED.
A. Procedural Background
Plaintiff Chaun Siner ("Siner") brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution. [1 at § III Statement of Claims ]. Siner, is currently incarcerated at the Carson City Correctional Facility after having pled guilty to narcotics distribution charges related to the events described herein. [ Id.; 1 at 46]. Siner alleges that during his arrest in Jackson, Michigan on April 5, 2012, he was chased by Jackson police officers Scott Goings ("Goings") and Steven Scarpino ("Scarpino"), that Scarpino tased him, causing him to fall and fracture his upper jaw and nose, and that this conduct amounted to excessive force in violation of his Fourth and Fourteenth Amendment rights. [ Id. ]. Siner also asserts that these officers falsely testified that in connection with his arrest for narcotics distribution, he was driving under the influence and pushed Scarpino, resulting in additional charges of obstructing a police officer and resisting arrest; the additional charges allegedly resulted in a higher sentencing guideline and a greater sentence on the drug charge, in violation of his Fourth, Sixth, and Fourteenth Amendment rights. [1 at Statement of Facts, 1-3]. Siner seeks $500, 000 in compensatory damages. [1 at §IV Relief ]. In his amended complaint, Siner requests unstated damages for emotional distress and physical injuries, $350.00 in compensation for his filing fee, punitive damages, and attorney's fees should he retain an attorney. [27 at Statement of Claims §A Legal Relief ].
Defendants filed a motion for summary judgment, arguing that Goings and Scarpino are entitled to qualified immunity, that the Jackson Police Department is not a legal entity capable of being sued, and that Siner's allegations of perjury are not cognizable under 42 U.S.C. § 1983. . Siner filed a response to this motion  in which he alleged that he "was tasered without any verbal warning or lawful command with a reasonable chance to comply." [22 at 5]. He also alleged, for the first time, that, he had "stopped fleeing when he was tasered, " and that Goings and Scarpino violated his Fourth Amendment rights by participating in a malicious prosecution. [22 at 2, 14-22]. Defendants filed a reply . Without receiving leave of court, Siner filed a surreply which did not allege any new causes of action. . Siner next moved to file an amended complaint in which he re-stated his allegations of malicious prosecution, perjury, and excessive force. [26, 27]. Siner also filed an affidavit in support of his claims in which he attested to the course of events set forth in his amended complaint. . Defendants then filed a response to Siner's motion to file an amended complaint in which they argued that his amendment was futile , and moved to strike Siner's surreply , and Siner responded to both filings. [34, 35].
B. Factual Background
Siner and Defendants dispute the course of events that led to his arrest. The Court will first set forth the events as described by Defendants, and will then note the ways in which Siner disputes that version of events. Fortunately, video tapes of the incident in question have been provided to the Court, and are also discussed below.
On April 5, 2012, the Jackson City Police Department received a call from a homeowner in Jackson, Michigan, near First Street and Colfax Street; the homeowner complained of someone pulling into and out of their driveway repeatedly, and knocking on the homeowner's door. [20 Ex. B, Preliminary Examination in 12th District Court for the County of Jackson, testimony of Goings at 6-7 ("Goings' testimony")]. Goings arrived on the scene, followed thereafter by Scarpino. [ Id. at 9]. The officers approached Siner's vehicle, where they found him asleep and the vehicle running. [ Id. at 8-9]. The officers woke Siner, who allegedly spoke in a manner that was slurred and difficult to comprehend. [ Id. at 10]. They assert that Siner seemed disoriented, and seemed to believe that he was in Detroit. [ Id. at 9]. The officers saw a blood sugar testing kit in Siner's vehicle, and asked him to check his blood sugar, which he attempted to perform on the trunk of his vehicle. [Goings' testimony at 10-11]. Defendants allege that Scarpino then saw a bag filled with a white substance sticking out of Siner's pocket, and directed Goings to "cuff him." [ Id. at 12]. They assert that Siner immediately lunged towards Scarpino, then away from the officers, and attempted to escape on foot. [ Id. at 12-13]. They further claim that Scarpino yelled the word "taser" twice during the chase, then deployed that device, which struck Siner. [20 at 3]. Siner fell and suffered a fracture to his upper jaw and nose upon striking the ground. [1 at 3]. Siner was thereafter taken into custody. [20 at 6].
Siner's version of events differs significantly. He alleges that he was not under the influence of narcotics at the time of arrest, but rather was merely tired after a day of driving and was napping as he waited for some friends to arrive. [22 at 4]. He asserts that he was neither confused nor disoriented. [ Id. ]. Siner recognizes that he was found with narcotics, but alleges that "neither officer observed the bag initially, until after [he] was tasered." [ Id. at 5]. However, Siner also inconsistently argues that "the bag was never fully retrieved from plaintiff's pocket before falling to the ground when plaintiff began to flee." [25 at 3].
Siner states that he did not push or lunge at either officer, but admits that he attempted to flee. [22 at 5]. He further claims that the chase ended not because he was tased, but rather because he "ended his own attempted [sic] to flee, by stopping and raising his hands up, when he was tased in the back." [ Id. ]. Siner denies that either officer yelled the word "taser, " though he paradoxically recognizes in the same paragraph that one of the officers can be heard yelling "taser" in a video recording of the incident. [ Id. at 8]. He further asserts that the word "taser" was yelled simultaneously with the deployment of the taser, thus he did not have time to comply with that implied command to stop. [ Id. ]. Siner alleges that he was "not under arrest until he began to run, " but also asserts that the officers failed to give him notice that he was under arrest or was required to stop his flight before deploying the taser. [ Id. at 10-11]. He also asserts that "[a]t no point did Scarpino pull any drugs out of plaintiff's pocket, then show the drugs to Goings, then say cuff him as the officers alleged and testified to." [ Id. at 11].
Siner asserts that "[t]here was no probable cause to arrest [him] for driving while under the influence. Plaintiff was not acting incoherent as officers allege, plaintiff was completely cooperative with the officers.... Plaintiff was only incoherent after he was tased and fell on the concrete face first." [22 at 16-17]. Finally, Siner alleges that Scarpino and Goings falsified their police reports and lied under oath during his prosecution by falsely asserting ...