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Byrne v. Bero

United States District Court, E.D. Michigan, Southern Division

June 2, 2015

ELLEN BYRNE and ANGELA COLONE, Plaintiffs,
v.
JEFFREY BERO and JOHN MORGAN, Defendants.

HON. R. STEVEN WHALEN

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. 15)

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.

Plaintiff Angela Colone[1] (“Plaintiff”) brings this 42 U.S.C. § 1983 action against Defendant Police Officer Jeffrey Bero, asserting a claim of excessive force.[2] Defendants filed a motion for summary judgment, based primarily upon qualified immunity (Dkt. 15). Plaintiff filed a response brief (Dkt. 17), and Defendants’ filed a reply (Dkt. 18). The Court, having carefully reviewed the parties’ briefs and supporting materials, finds that the motion may be resolved on the basis of the record and that oral argument would not significantly aid the Court’s decision. Accordingly, Defendants’ motion for summary judgment (Dkt. 15) will be decided without a hearing. See E.D. Mich. LR 7.1(f)(2).

For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. As described more fully below, Plaintiff’s claim of excessive force against Defendant Bero may proceed. Thus, Defendants’ motion for summary judgment is DENIED as to this claim. As to Defendants’ motion for summary judgment against Defendant Morgan, this motion is GRANTED. As to any claims brought by Plaintiff Ellen Byrne (Plaintiff Angela Colone’s mother), those claims are DISMISSED WITH PREJUDICE. Therefore, Defendant Morgan and Plaintiff Byrne are dismissed from this suit.

I. BACKGROUND

This case arises out of the arrest of Plaintiff, then 16 years old, by Defendant Police Officers Jeffrey Bero and John Morgan of the Redford Township Police Department (Dkt. 1). On February 2, 2013, at approximately 2:15 a.m., Redford Township police officers, Defendants Bero and Morgan, were dispatched to 20049 Lexington Street in Redford, Michigan, on a call reporting an assault and battery/damage to property in progress (Dkt. 1; Dkt. 15, Ex. 2, Police Report). When they arrived, Defendant Bero was met by Chad Cox, an occupant of the residence (Dkt. 15, Ex. 2). Mr. Cox informed Defendant Bero that Plaintiff had gotten into a fight with another guest while attending a party at his home and had thrown an object through his front living room window. Id. During her deposition, Plaintiff indicated that she got into a physical confrontation during the party with an “Asian woman” who she did not know (Dkt. 15, Ex. 3 at 22-23). Apparently due to Plaintiff’s conduct during this argument, Mr. Cox picked up Plaintiff, and carried her out of the house to the front porch (Dkt. 15, Ex. 3 at 27). Plaintiff, upset at being ejected from the party, took a potted plant from the yard, and heaved it through a front window, shattering it (Dkt. 15, Ex. 3 at 29). Plaintiff admitted to drinking “liquor” (she could not recall how much), and smoking marijuana at the party (Dkt. 15, Ex. 3 at 21-22).

When the police arrived and Defendant Bero was approaching the house, he noticed Mr. Cox’s mother and the owner of the house – Cheryl Mason – standing next to the open driver-side door of a vehicle parked in the driveway (Dkt. 15, Ex. 2). Plaintiff was sitting in the passenger seat of the vehicle and her boyfriend, 20-year-old Anthony Carmona, was sitting in the driver’s seat. Id. Plaintiff testified that Ms. Mason had her foot in the door of the car, preventing it from being closed, and that Ms. Mason had reached across Mr. Carmona and struck Plaintiff in the left side of her face (Dkt. 15, Ex. 3 at 32-33). There is no indication in the record that either officer witnessed Ms. Mason strike Plaintiff.

According to his Police Report, as Defendant Bero approached the vehicle, he heard Plaintiff yelling at Mr. Carmona that she needed to “get out of here.” (Dkt. 15, Ex. 2). The car was not running, and the keys were not in the ignition. Id. As Defendant Bero shined his flashlight into the car, he heard Plaintiff say, “Great! Now I’m going to jail!” (Dkt. 15, Ex. 2). At that point, Ms. Mason informed the officer, Defendant Bero, that she witnessed Plaintiff break her window, and that she wanted to prosecute (Dkt. 15, Ex. 2).

The Police Report states that Defendant Bero asked Plaintiff to get out of the car, but she did not do so immediately but rather asked him why she was being arrested (Dkt. 15, Ex. 2; Ex. 3 at 36, 41). Plaintiff testified that Defendant Bero then responded “you’re not asking questions, I am,” opened the car door, grabbed her right arm, pulled her out of the car, and immediately threw her to the ground (Dkt. 15, Ex. 3 at 36). In the Police Report, and during his deposition, Defendant Bero stated that he grabbed Plaintiff’s right wrist to remove her from the vehicle, but she tried to pull away from him, lost her balance and fell on her own, without any push from him (Dkt. 17, Ex. 2; Ex. 4 at 14). Specifically, the Police Report states:

I TOLD [PLAINTIFF] TO EXIT THE CAR AND SHE REFUSED SO I GRABBED HER RIGHT WRIST AND SHE EXITED THE CAR. I NOTICED A STRONG ODOR OF BOTH MARIJUANA AND INTOXICANTS COMING FROM HER BREATH AND PERSON. SHE ASKED WHY I WAS GRABBING HER WRIST AND I TOLD HER THAT SHE WAS UNDER ARREST. SHE SAID NO AND STARTED TO PULL AWAY FROM ME WITHOUT SUCCESS. SHE THEN STARTED PUSHING ME SO I PULLED HER BY HER RIGHT ARM AWAY FROM THE CAR AND TOWARD THE LAWN. SHE LOST HER BALANCE AND FELL FACE FIRST TO THE FROZEN GROUND WHERE SHE RECEIVED BRUISES AND SCRAPES TO THE RIGHT SIDE OF HER FACE (Dkt. 15, Ex. 2) (capitalization in the original).

The above statement in the Police Report and Defendant Bero’s deposition testimony both state that Plaintiff fell on her own as she was exiting the car. However, Defendant Bero also completed a “Use of Force Report Form” (Dkt. 17, Ex. 3) in which he wrote that he used a “straight arm bar takedown” maneuver on Plaintiff.[3] Defendant Bero attempted to explain this discrepancy in his deposition by stating that he used the term “straight arm bar takedown” on the form as a short-hand description of his actions that his supervisors would understand, although he says he did not, in reality, take Plaintiff to the ground by executing a straight arm bar take down (Dkt. 15, Ex. 4 at 41). Defendant Bero maintains that he provided the details of his action in his Police Report, rather than in the Use of Force Report. The Use of Force Report (a two-page form) also checks off Plaintiff’s “level of resistance” as “verbal resistance – stated she would not be arrested” and “defensive resistance – struggled and pushed away from arrest.” Id. Defendant Bero admits in his deposition, however, that Plaintiff did not actually offer any verbal resistance; she never stated she would not be arrested as Defendant Bero writes on the form (Dkt. 15, Ex. 4 at 43).[4]

If Defendant Bero did actually execute a straight arm bar take down, it bears noting that, on the night of the incident, Plaintiff was 16 years old, five feet five inches tall and approximately 110 pounds in weight; Defendant Bero was six feet six inches in height, and approximately 375 pounds in weight (Dkt. 17; Ex. 3; Dkt. 15, Ex. 4 at 11).

Plaintiff contradicted Defendant Bero’s testimony that she struggled with him in any way (Dkt. 15, Ex. 3 at 41). Plaintiff stated that Defendant Bero grabbed her by the arm, pulled her out of the car, and then immediately pushed her face– first to the cement driveway, causing the injuries to her face and teeth. Id. Plaintiff does not know exactly how Defendant Bero brought her to the ground, as he was standing behind her at the time she was thrust downward (Dkt. 15, Ex. 3 at 38-39). After going to the ground, Plaintiff was handcuffed by Defendant Bero and placed in the back of the police car by Defendant Morgan (Dkt. 17, Ex. 3 at 40-41). The right-side of Plaintiff’s face was bleeding, and she could feel broken and chipped teeth in her mouth (Dkt. 15, Ex. 3 at 43-44).

At this point, Plaintiff’s boyfriend, Mr. Carmona, began yelling that he was going to kill himself, so Defendant Bero took him into protective custody and transported him to the hospital (Dkt. 15, Ex. 4 at 39). Plaintiff was transported to the Redford Police Department by Defendant Morgan, her parents were contacted and she was released into her father’s care and custody (Dkt. 15, Ex. 2). Plaintiff’s parents took her to the hospital that morning; her ...


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