United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT CITY OF MADISON HEIGHT'S MOTION FOR SUMMARY JUDGMENT [#41] AND DENYING DEFENDANT DAVID DAVIS'S MOTION FOR SUMMARY JUDGMENT [#43]AND CANCELLING MAY 26, 2015 HEARING
GERSHWIN A. DRAIN, District Judge.
Plaintiff Mary Harless filed the instant 42 U.S.C. § 1983 action alleging that Defendant David Davis and the City of Madison Heights violated her constitutional right to be free from the excessive use of force under the Fourth Amendment. Presently before the Court are Davis's Motion for Summary Judgment and the City of Madison Heights's Motion for Summary Judgment, both filed on March 6, 2015. Upon review of the parties' briefing, the Court concludes that oral argument will not aid in the resolution of this matter. Accordingly, the Court will cancel the hearing and decide the present motions on the briefs. See E.D. Mich. L.R. 7.1(f)(2).
Davis's Motion for Summary Judgment is fully briefed. However, Plaintiff failed to file a Responsive Brief to the City's Motion for Summary Judgment, thus the City's Motion is unopposed. The proof of service for the City's Motion for Summary Judgment indicates that it was served on March 6, 2015. Local Rule 7.1(c)(1) states that "[a] respondent opposing a motion must file a response, including a brief and supporting documents then available." E.D. Mich. L.R. 7.1(c)(1). Responses to dispositive motions "must be filed within 21 days after service of the motion." E.D. Mich. L.R. 7.1(e)(1)(B). Accordingly, the response to the City's motion was due no later than March 31, 2015. Id .; see also Fed.R.Civ.P. 6(a) and 6(d). Upon review of the City's unopposed motion, the Court will grant the City's Motion for Summary Judgment. The Court will deny Davis's Motion for Summary Judgment.
II. FACTUAL BACKGROUND
The incident giving rise to the present action occurred during the early morning hours of August 14, 2010. Plaintiff was living with her boyfriend, Michael Socha,  at a home Socha was renting with his parents. On August 13, 2010, Socha attended a family funeral. Socha's ex-girlfriend also attended the funeral, which upset the Plaintiff since Socha had not asked her to attend the funeral. When he came home, Plaintiff questioned him about the funeral and the two argued "forcefully." Socha left and came back home around midnight. Plaintiff consumed alcoholic beverages while Socha had been away from the house.
The two began to argue again. Plaintiff admits they both were loud and that she was swearing at Socha. At some point after midnight, Plaintiff decided to have a cigarette and she and Socha moved outside onto the front porch where the argument "escalated." Plaintiff was yelling and continuing to use profanities on the front porch. Socha's mother, Debra Socha, was home at the time and she claims Plaintiff was aggressive, calling her son names and getting in his face. She believed Plaintiff was trying to provoke her son into striking her.
Socha told Plaintiff that he wanted her to leave the residence. Plaintiff refused to leave so Socha called the police. During the call, Socha informed the dispatcher that Plaintiff had been drinking, that she was trying to provoke him and threatened to get violent with him. He told the dispatcher he had asked Plaintiff to leave and that she would not do so.
Davis was dispatched at approximately 4:00 a.m. in response to Socha's call. As he drove to the scene, he could hear Plaintiff yelling profanities on the porch from several houses away. Plaintiff admits that when Davis arrived, she could feel the effects of the alcohol she had consumed throughout the night. Davis spoke briefly with Socha on the porch. Socha informed him that Plaintiff had been drinking, that she became upset and she would not leave. He told Davis that Plaintiff did not live at the home and that he wanted her to leave. Based on his observations of Plaintiff's "smell, her actions, her tone, her demeanor [and] her body language, " Davis concluded that Plaintiff had been drinking. Dkt. No. 43, Ex. 1 at 36.
Davis decided to separate Plaintiff and Socha and asked her to move to the end of the driveway on the sidewalk. He attempted to de-escalate the situation by instructing Plaintiff "to calm down, to stop swearing, " but Plaintiff continued to yell to Socha, who was still on the front porch with his mother and another officer who had arrived on the scene. Id. at 45, 76-77. Davis instructed Plaintiff to calm down and stop swearing but she would not cease her yelling and swearing.
At this point, Davis claims that he observed Plaintiff move toward Socha in an aggressive and assaultive manner. Davis testified at his deposition that "she actually had to bump into me to get by me.... She was so angry with him for whatever reason, that she was actually walking through me and that's when I put my hands up and I said you're under arrest." Id. at 46. Socha's mother also testified that she witnessed Plaintiff trying to get to Socha on the porch.
Davis decided to arrest Plaintiff for disorderly conduct because of "the screaming and the yelling at 4:00 in the morning with people in earshot." He informed Plaintiff that she was under arrest for disorderly conduct and he took her by the wrist in order to lead her towards the police car. According to Davis, Plaintiff pulled away and the two struggled for a moment while Davis attempted to grab Plaintiff's wrist again. Davis admits that he placed Plaintiff in a "bear hug" in order to get control of her and picked her up off of the ground, causing the two to fall to the ground. Davis landed on top of Plaintiff and she hit her head on the cement, resulting in an abrasion to the side of her face. Davis claims that the two fell to the ground because he lost his balance due to the fact that Plaintiff was squirming. Plaintiff had an abrasion on the left side of her forehead as a result of the fall. Plaintiff denies fidgeting in any manner.
Plaintiff denies moving toward Socha, but admits that she was "walking away" from Davis. Dkt. No. 48, Ex. 2 at 56. Plaintiff claims that she flicked her cigarette into the street and Davis told her to pick it up or she would be arrested for littering. She claims she picked up the cigarette butt and put it in her pocket and when she started to walk away, Davis grabbed her arm. She further claims that Davis pulled her to him, picked her up, slammed her to the ground, put his knees to her back, cuffed her too tightly, forcefully stretched her arms, rolled her over, stepped on her right thigh, picked her up by the handcuffs, again extending her arms, dragged her and threw her into the back of the police car.
Once at the station, Plaintiff indicated that she wanted to go to the hospital. Davis took Plaintiff to the police department where two firefighters attended to her injury. Davis and another officer then transported her to St. John Oakland. She was cleared for ...