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Kersh v. Turner

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

July 24, 2015

ERIC KERSH, Plaintiff,
v.
CIERE FREEMON TURNER, Defendant.

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

DENISE PAGE HOOD, District Judge.

Before the Court is Plaintiff's Motion for Default Judgment. [Docket No. 7, filed May 27, 2015]. On February 26, 2015, the Clerk entered Default against Ciere Freemon Turner ("Defendant"). [Docket No. 5]. For the reasons discussed below, Plaintiff's Motion for Default Judgment is GRANTED.

I. BACKGROUND

Plaintiff seeks to collect $75, 000 in damages arising out of Defendant's alleged assault and battery of and use of excessive force against Plaintiff on December 11, 2012. On that day, Defendant was on duty as a Bailiff for the 36th District Court and was scheduled to conduct a re-eviction of the home at 20400 Manor, Detroit, MI. Plaintiff and his girlfriend were residing in the home at that time. Plaintiff claims he heard a banging noise on the front door and came down the stairs to investigate. Plaintiff then encountered Defendant, who had entered the premises and Plaintiff believed was attempting to break into the home illegally. Defendant drew his gun and shot Plaintiff in the leg. Plaintiff claims that Defendant fired his gun at Plaintiff merely because Defendant was startled. Defendant, on the other hand, claims that Plaintiff charged down the stairs at him.

Plaintiff filed a Complaint regarding this matter on November 24, 2014. [Docket No. 1]. On January 23, 2015, Plaintiff left a copy of the Summons and Complaint with a male, appearing to be 20-27 years old, at Defendant's address, [1] pursuant to Federal Rule of Civil Procedure ("FRCP") 4(e)(2)(b). [Docket No. 3, filed February 18, 2015]. On February 26, 2015, having received no responsive pleading from Defendant, Plaintiff requested that the Clerk enter Default against Defendant. [Docket No. 4]. That same day, the Clerk entered Default against Defendant pursuant to FRCP 55(a). [Docket No. 5].

II. ANALYSIS

An Entry of Default under FRCP 55 is the first procedural step necessary to obtain a default judgment. Shepard Claims Serv. Inc. v. Williams Darrah & Assoc., 796 F.2d 190, 193 (6th Cir. 1986). "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). The party must then apply to the Court for entry of the default judgment. Fed.R.Civ.P. 55(b)(2). The Court may enter default judgment "[a]gainst a minor or incompetent only if represented by a general guardian, conservator, or other like fiduciary who has appeared." Fed.R.Civ.P. 55(b)(2). The Court may conduct an accounting, determine the amount of damages, establish the truth of any allegations by evidence, or investigate any other matter. Fed.R.Civ.P. 55(b)(2).

The Clerk made an Entry of Default in this case on February 26, 2015. [Docket No. 5]. The Clerk's Entry appears not to be in error, as Plaintiff's counsel's affidavit states that Defendant failed to plead or otherwise defend in accordance with FRCP 12. [Docket No. 4, filed February 26, 2015]; see Fed.R.Civ.P. 12(a)(1)(A)(i) (stating that a Defendant must serve an answer "within 21 days after being served with the summons and complaint"). The affidavit also affirms that Defendant is not a minor, incompetent person, or a member of the military service. [Docket No. 4, filed February 26, 2015].

Plaintiff now seeks Default Judgment in the amount of $75, 000 for Defendant's alleged use of excessive force against Plaintiff, pursuant to 42 U.S.C. § 1983, and Defendant's assault and battery of Plaintiff.

A. Liability for Excessive Force Claim

Plaintiff seeks relief for Defendant's alleged use of excessive force against Plaintiff pursuant to 42 U.S.C. § 1983. To prove a claim under 42 U.S.C § 1983, a plaintiff must establish (1) a violation of an existing constitutional right (2) by a person acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978).

Plaintiff argues that Defendant's alleged use of excessive force against Plaintiff violated Plaintiff's Fourth Amendment right to be free from unreasonable seizures. In Graham v. Connor, the Supreme Court held that "[a]ll claims that law enforcement officers have used force-deadly or not-in the course of an arrest, investigatory stop, or other seizure' of a free citizen should be analyzed under the Fourth Amendment and its reasonableness' standard...." 490 U.S. 386, 395 (1989).

To make out an excessive force claim under the Fourth Amendment, Plaintiff must first establish that an arrest, booking, or some other type of seizure took place. See Graham, 490 U.S. at 394; see also Cameron v. City of Pontiac, 813 F.2d 782, 785 (6th Cir. 1987) ("[A]bsent an actual physical restraint or physical seizure, the alleged unreasonableness of the officers' conduct cannot serve as a basis for a § 1983 cause of action anchored in the Fourth Amendment."). A seizure "requires either physical force... or, where that is absent, submission to the assertion of authority." California v. Hodari, 499 U.S. 621, 626 (1991); see also Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008) (quoting Peete v. Metro. Gov't of Nashville & Davidson County, 486 F.3d 217, 220 (6th Cir. 2007)) (defining a seizure as "an intentional interference with a person's liberty by physical force or a show of authority that would cause a reasonable person consciously to submit.") (internal quotation marks omitted). In Floyd, the Sixth Circuit held that an officer's gunshot, which struck a suspect in the chest, "clearly seized [the suspect] within the meaning of the Fourth Amendment." 518 F.3d at 406.

Next, Plaintiff must establish that the officer's use of force in effecting the seizure was objectively unreasonable. See Graham, 490 U.S. at 395; Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (citing Dunigan v. Noble, 390 F.2d 486, 493 (6th Cir. 2004)). Courts must assess the reasonableness of the officer's action "from the perspective of a reasonable ...


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