United States District Court, E.D. Michigan, Southern Division
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Stephen Hammond, Plaintiff: Shawn C. Cabot, Christopher
Trainer and Assoc (White Lake), White Lake, MI.; Amy J.
DeRouin, Christopher Trainor Assoc., White Lake, MI.
Lapeer, County of, James Cummings, Dale Engelhardt,
Defendants: Christopher J. Johnson, Farmington Hills, MI.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO.
BORMAN, UNITED STATES DISTRICT JUDGE.
the Court is Defendants Lapeer County, James Cummings and
Dale Engelhardt's Motion for Summary Judgment. (ECF No.
20.) Plaintiff filed a Response (ECF No. 24) and Defendants
filed a Reply (ECF No. 26). The Court held a hearing on June
19, 2015. On July 30, 2015, the Court ordered the parties to
submit supplemental briefing addressing the appropriate
constitutional standard for analyzing Plaintiff's
excessive force claims in this case. Defendants filed their
supplemental brief on July 30, 2015 (ECF No. 29) and
Plaintiff filed two supplemental briefs, one on July 30, 2015
and a second supplemental brief on August 14, 2015 (ECF No.
31). For the reasons that follow, the Court GRANTS IN PART
and DENIES IN PART Defendants' motion.
action involves Plaintiff's claim that deputies applied
excessively tight handcuffs, which they refused to loosen,
and used excessive force when escorting him to and placing
him in a holding cell, after he was held in contempt of
court, sentenced and remanded to custody, following a
December 12, 2011, Friend of the Court Bench Warrant
Arraignment in Lapeer County Circuit Court, on three separate
child support arrearages. The individual deputies and the
County now move for summary judgment. Because genuine issues
of material fact remain as to Plaintiff's excessive force
and assault and battery claims, the Court DENIES the
individual Defendants' motion for summary judgment.
Because there is no evidence that the County had notice of
similar constitutional violations that the County ignored,
the Court GRANTS the County's motion for summary
December 12, 2011, Plaintiff was arraigned before Judge
Justus C. Scott, Family Court Judge of the Lapeer County
Circuit Court, on a Friend of the Court Bench Warrant.
(Defs.' Mot. Ex. 1, Transcript of December 12, 2011
Proceedings, hereinafter " 12/12/11 Tr." ) Judge
Scott found Plaintiff in contempt of court on each of three
separate child support arrearages, ordered Plaintiff to pay
on two of the three arrearages, sentenced him to thirty days
in jail and remanded him immediately to the custody of the
Testimony of Ms. Potter-Knowlton
case worker assigned to Plaintiff's cases, Beth
Potter-Knowlton, met with
Plaintiff before the arraignment to determine if any
arrangements could be made on his arrearages. (Defs.'
Mot. Ex. 2, October 29, 2014 Deposition of Beth
Potter-Knowlton 18.) Ms. Potter-Knowlton testified that she
was unable to make any headway with Plaintiff and that, by
the time they appeared before Judge Scott, Plaintiff was
" a little bit agitated." Id. at 22. She
testified that Plaintiff was " curt" with Judge
Scott and had " a bit of an attitude." Ms.
Potter-Knowlton thought Plaintiff was unhappy that a
complainant in one of the child support matters was present
in the courtroom. Id. According to Ms.
Potter-Knowlton, after Judge Scott ruled and ordered
Plaintiff detained, Plaintiff made " some
statements," the exact content of which she could not
recall, to the complainant in the audience. Id. at
Potter-Knowlton accompanied Plaintiff out of the courtroom
and placed him in a holding cell outside the courtroom and
asked for officer assistance to help her get Plaintiff down
to lock up. Id. at 25. Typically, if there is "
no issue" with the individual who has been ordered
detained, they would sit in a chair in the courtroom while
Ms. Potter-Knowlton had the order signed by the judge and
then she would " do a quick pat down" and take them
down the elevator to the lock up for processing. Id.
at 27-28. If there " is a problem for some reason,"
Ms. Potter-Knowlton places the individual in a holding cell
and calls for assistance. On this particular day, because of
Plaintiff's " agitated demeanor," she placed
him in the holding cell and called for assistance to take him
down the elevator to lockup. Id. at 28. Ms.
Potter-Knowlton could not recall what exact behaviors
Plaintiff had exhibited that made her call for assistance
that day but noted that she had been " doing this a long
time," and had a " gut feeling" that Plaintiff
needed to " cool off" and she was not comfortable
with him " being without handcuffs" and taking him
down the elevator by herself. Id. 29-30.
Deputy James Cummings arrived to assist in taking Plaintiff
down the elevator. Id. at 32-33. When Cummings
arrived, Plaintiff was in the holding cell talking on his
cell phone and ignored Cummings' request that he get off
the phone. Id. at 33. Ms. Potter-Knowlton recalled
that Plaintiff ignored somewhere between three and five of
Cummings' requests to get off of his phone. Id.
at 33-34. At some point, out of Ms. Potter-Knowlton's
sight, Cummings placed Plaintiff in handcuffs. Id.
at 36-37. Ms. Potter-Knowlton does not recall Plaintiff
complaining about the tightness of the handcuffs.
Id. at 37.
Plaintiff was handcuffed, Cummings escorted Plaintiff to the
elevator and Ms. Potter-Knowlton operated the elevator, which
required a key to be inserted before a floor could be pushed.
Id. at 34. Cummings instructed Plaintiff to get in
the elevator facing the rear of the elevator and Plaintiff
was twisting from the waist up and resisting Cummings'
instructions and asking why he was being made to do this.
Id. at 47. Ms. Potter-Knowlton first accidentally
pushed the button for the wrong floor and the three of them
had to remain on the elevator as it proceeded to the
incorrect floor before she could re-insert the key and
activate the appropriate floor button. Id. at 40-41.
Throughout this time period, Plaintiff continued to look back
and ask why he was being instructed to put his face to the
rear of the elevator. Id. at 47. Ultimately a "
scuffle" ensued between Cummings and the Plaintiff and
Plaintiff eventually ended up on his knees in the elevator.
Id. at 48. At some point, Cummings made reference to
using his taser if Plaintiff did not stop "
thrashing." Id. at 49. Ms. Potter-Knowlton was
" nervous" during this scuffle on the elevator,
that she could have been banged or hit by Cummings
or the Plaintiff but does not recall Plaintiff threatening
her directly in any way. Id. 49-50. When the door
opened on the basement floor at the lock up area, there was
another officer waiting to assist Cummings with getting
Plaintiff off the elevator, so Ms. Potter-Knowlton went back
up the elevator to complete her paperwork. Id. at
51. She remembers generally indicating, once she was back at
her office, that there had been an incident on the elevator.
Id. at 51.
Testimony of Officer Cummings
Cummings recalls that on December 12, 2011, he was called by
Sergeant Engelhardt, who had been called by Judge Scott's
courtroom clerk, to report to the holding cell area outside
the courtroom to help take the Plaintiff into custody.
(Defs.' Mot. Ex. 4, October 14, 2014 Deposition of James
Cummings 13.) Cummings testified that Plaintiff was in a
holding cell when Cummings first encountered him, and was
talking on his cell phone. Id. at 14. Plaintiff
appeared agitated while talking on the phone and was yelling
at Cummings who was ordering Plaintiff to get off the phone.
Id. at 14-15. Plaintiff refused three or four verbal
commands from Cummings to get off the phone after which
Cummings opened the holding cell door and explained that
Plaintiff had been remanded to custody and to hang up the
phone. Plaintiff then hung up the phone, shoved it in his
pocket and " assumed a fighting stance" and "
doubled up his fists" and stared at Cummings.
Id. at 16. After maybe a minute, Plaintiff followed
Cummings' order to turn around and place his hands on the
wall so that he could place him in handcuffs. Cummings then
handcuffed him behind his back and explained that they were
going to go get on the elevator. Id. at 18-19. At
this point, Cummings was not able to check the handcuffs for
tightness or double lock them (which prevents them from
tightening on themselves, id. at 22-23) because
Plaintiff was still being " aggressive," and
starting to " tense up" and " not wanting to
go with" Cummings. Id. at 21. Plaintiff was
arguing with Cummings about why he had to go downstairs.
Id. at 22. Cummings was not able to check the
handcuffs for tightness, by placing his finger between the
handcuffs and Plaintiff's wrist, until they arrived
downstairs in the lockup. Id. at 23. Cummings
testified that Plaintiff never complained that he was in pain
or that his handcuffs were too tight. Id. at 23-24.
Cummings got Plaintiff out of the holding cell to walk to the
elevator, Plaintiff once again turned to face Cummings and
Cummings just turned him back around, held both of his arms
and walked him toward the elevator where Ms. Potter-Knowlton
was waiting with the elevator key. Id. at 25. During
the two or so minutes that the three of them waited for the
elevator, Plaintiff was a little " lippy" with
Cummings but not physically resisting. Id. at 26.
When they got on the elevator, Cummings told Plaintiff to
face the back of the elevator and Plaintiff was "
hollering" at Cummings, questioning why he had to face
the back of the elevator. Id. at 26-27. Plaintiff
complied but once the elevator started moving, Plaintiff
suddenly tried to spin around and wanted to argue with
Cummings and Ms. Potter-Knowlton about why he was in custody
and why he had to go to jail. Id. at 27-28. Cummings
turned Plaintiff back to face the wall of elevator but
Plaintiff spun around again, which Cummings interpreted as an
effort to go for Ms. Potter-Knowlton. Cummings got a hold of
Plaintiff's shirt from the back and got Plaintiff into
the corner and he spun around again, at which time Cummings
put his foot into the back of Plaintiff's calf and forced
Plaintiff into a kneeling position. Id. at 30-31.
Cummings told Plaintiff to stay down on his knees, and told
Plaintiff he was going to, and did, pull out his taser.
Id. at 32-33. Plaintiff then stopped trying to get
back up and sat on the elevator floor
until the doors opened up at the basement. Id. at
33. Cummings estimated that the elevator ride lasted about
four minutes. Id.
the elevator arrived at the basement, they were met by
Sergeant Dale Engelhardt. Id. at 34. They took
Plaintiff, still handcuffed, to the holding cell where
Cummings had Plaintiff get back on his knees so that he could
pat him down and take his property and check his handcuffs.
Id. While Cummings did this, Engelhardt was talking
to Plaintiff, trying to calm Plaintiff down and diffuse
Plaintiff's anger over being placed in custody by Judge
Scott. Id. at 35. Cummings checked Plaintiff's
handcuffs and then returned to the circuit court to finish up
what he had been doing when he was called to assist with
Plaintiff. Id. at 35-36. When he returned to the
basement lock up, Plaintiff had " calmed down," and
Cummings removed the handcuffs that were on Plaintiff, which
were Cummings' handcuffs, and replaced them with another
set of jail cuffs. Id. at 36. Cummings testified
that Plaintiff never complained that the handcuffs were too
tight or were hurting him. Id. Cummings then
transported Plaintiff, along with the rest of the inmates, to
the jail. Id. at 37. After the incident, Cummings
testified, he caused an arrest warrant to be issued for
Plaintiff for his resisting and obstructing in the elevator
ride. Id. Plaintiff accepted guilt by pleading nolo
contendere to the criminal charge of resisting arrest and
later filed a Citizen Complaint against Cummings for the
incident in the elevator. Id. at 38.
Testimony of Sergeant Engelhardt
Engelhardt initially placed the call to Cummings to go to
shcourtroom and assist with Plaintiff after Engelhardt
received a call from Judge Scott's courtroom clerk
requesting assistance with Plaintiff, whom she described to
Engelhardt as " unruly." (Defs.' Mot. Ex. 3,
October 14, 2014 Deposition of Dale Engelhardt 13-15.)
Approximately 10-20 minutes after Engelhardt placed the call
to Cummings, Cummings and Ms. Potter-Knowlton arrived down in
the basement at lockup with Plaintiff. Id. at 17.
Engelhardt testified that he could see on the elevator
monitor down in the basement lock up area that Plaintiff was
resisting Cummings in the elevator. Id. at 18-20. It
appeared to Engelhardt that Cummings and Plaintiff were
wrestling and that Cummings was trying to gain control of
Plaintiff and Plaintiff was resisting him and pulling away.
Id. at 21. The elevator door opened and Ms.
Potter-Knowlton yelled " Dale" as Engelhardt came
around the corner and was right there at the elevator door.
Id. at 22. At that point, it appeared to Engelhardt
that Cummings had control of Plaintiff in the escort position
but Plaintiff was " visibly upset." Id. at
23-24. Plaintiff did not scream or try to assault anyone, and
Engelhardt " verbally engaged" Plaintiff to try to
de-escalate the situation and calm Plaintiff down.
Id. at 24. Engelhardt testified that Plaintiff
responded " indifferently" but never became a
problem for Engelhardt. Id. 24-25.
and Engelhardt both escorted Plaintiff to the lockup holding
cell and Cummings instructed Plaintiff to kneel so that
Cummings could pat him down and retrieve his personal
belongings. Id. at 26. Plaintiff then stood up and
Cummings and Engelhardt left the holding cell and closed the
door. Id. at 27. Cummings then left the basement but
returned later to exchange Plaintiff's handcuffs when it
was time for the transport to the jail. Id.
Engelhardt thought Cummings was gone less than thirty
minutes, maybe 15-20 minutes. Id. at 28. During this
time Plaintiff was not unruly and did not ever complain that
his handcuffs were too tight or that he was in pain.
Id. Engelhardt testified that if Plaintiff had
complained, he would have checked Plaintiff's wrists and
checked the handcuffs for tightness. Id. at 29.
admitted that he was upset the day of his appearance in court
with a woman named Jennifer, the mother of one of his
children, who was in the courtroom on December 12, 2011
during his arraignment. (Defs.' Mot. Ex. 13, October 14,
2014 Deposition of Stephen Hammond 13.) He was upset with
Jennifer because she gave a statement that Plaintiff should
not be permitted to walk the streets because he failed to pay
child support. Id. at 14. Plaintiff testified that
he was in the holding cell outside the courtroom for about 10
minutes and that he still had his wallet, keys and phone.
Id. He testified that he made a call to "
Jina" while he was in the holding cell asking her to pay
the $800 bail to get him out of jail. Id. at 14-15.
Plaintiff admitted that he did not immediately get off the
phone when Cummings first asked him to because the signal was
bad and he had to keep repeating the amount of his bail to
Jina. Id. at 16.
denies that he struck a fighting posture when Cummings first
entered the holding cell and testified that he fully
cooperated with Cummings' efforts to place the handcuffs
on him. Id. at 17. Plaintiff testified that he
immediately told Cummings that the handcuffs were too tight
and that Cummings " did nothing" and said "
they'll be ok." Id. at 17, 35. Plaintiff
had been in the jail before and had never had a problem with
any of the deputies before this incident. Id. at
18-19. Plaintiff states that Cummings was pulling Plaintiff
around by the hood of his sweatshirt and directing him with
the hood of his sweatshirt
into the elevator. Id. at 19. Plaintiff testified
that once they were in the elevator, Cummings "
shoved" him into the back of the elevator and then tried
to " throw [Plaintiff] on the floor." Id.
at 20, 36, 39. Plaintiff asked Cummings why he was throwing
Plaintiff around and that is when Cummings pulled out his
taser. Id. at 20-21. Plaintiff was kneeling at the
time and Cummings kept the taser pressed into Plaintiff's
neck but never discharged the taser. Id. at 21.
states that when the elevator doors opened on the basement
floor, Engelhardt was there and they took Plaintiff to his
cell. Id. at 22. Plaintiff told Engelhardt and
Cummings that the handcuffs were tight on him and neither one
did anything about it. Id. They left him in the cell
for " probably 45 minutes," before they both came
back in, took his personal property, removed the handcuffs
from behind his back and put handcuffs back on in front of
his body. Id. at 22-23.
was transported to the jail and, within five minutes of his
arrival at the jail and before he was booked, he complained
to an officer, whom he could not identify, that his handcuffs
had been too tight. Id. at 24. Upon his arrival at
the jail, Plaintiff was initially processed, searched and
printed by Deputy Brandon Jones and subsequently booked by
Sergeant Theresa Davis. (Defs.' Mot. Ex. 5, October 29,
2014 Deposition of Brandon Jones 19-20.) After he paid the
fine and was released, Plaintiff returned to the front of the
jail to file a citizens complaint against Cummings, at which
time someone took photographs of his wrists, which were
" swelled up and really red," but not cut or
scraped. Hammond Dep. 24-25, 41. The following Monday,
Plaintiff sought medical treatment for his wrists.
Id. at 25. Plaintiff testified that he complained at
least three times that the handcuffs were too tight.
Id. at 37.
Davis took Plaintiff's Citizens Complaint against
Cummings. (Defs.' Mot. Ex. 7, October 29, 2014 Deposition
of Theresa Davis 10, Ex. 1, Incident Report, Ex. 2, Citizens
Complaint.) After Plaintiff completed the paperwork, he
showed Sergeant Davis his wrists. Sergeant Davis testified
that his wrists were red and had marks consistent with
handcuffs being applied and with someone resisting and also
consistent with handcuffs being applied too tightly even if
there was no resistance. Davis Dep. 14-15. Sergeant Davis
testified that Plaintiff also complained that his thumbs were
numb and she directed Detective Sergeant Polmanteer to take
photographs of Plaintiff's wrist, which Sergeant
Polmanteer did. Id. at 15; Defs.' Mot. Ex. 11,
Photographs. Sergeant Davis told Plaintiff that his Complaint
would be reviewed by Lieutenant Duane Engelhardt (the brother
of Sergeant Dale Engelhardt who interacted with Plaintiff in
the lock up at the Lapeer County Courthouse) and that
Plaintiff would be contacted about the outcome. (Davis Dep.
13-14; Davis Dep. Ex. 1, Incident Report.) On December 19,
2011, Lieutenant Engelhardt sent Plaintiff a letter
explaining that his Citizens Complaint had been reviewed and
that a determination had been made that Cummings used the
amount of force necessary to gain compliance with Judge
Scott's Order. (Defs.' Mot. Ex. 12, Dec. 19, 2011
Memorandum to Plaintiff.)
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a party
against whom a claim, counterclaim, or cross-claim is
asserted may file a motion for summary judgment " at any
time until 30 days after the close of all discovery,"
unless a different time is set by local rule or court order.
Fed.R.Civ.P. 56(b). Summary judgment is appropriate where the
moving party demonstrates that there is no genuine dispute as
to any material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a).
" Of course, [the moving party] always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of 'the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact." Celotex, 477
U.S. at 323. See also Gutierrez v. Lynch,
826 F.2d 1534, 1536 (6th Cir. 1987).
is " material" for purposes of a motion for summary
judgment where proof of that fact " would have [the]
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties." Kendall v. Hoover Co., 751 F.2d 171,
174 (6th Cir. 1984) (quoting Black's Law Dictionary 881
(6th ed. 1979)) (citations omitted). A dispute over a
material fact is genuine " if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Conversely, where a reasonable jury could not find for the
nonmoving party, there is no genuine issue of material fact
for trial. Feliciano v. City of Cleveland, 988 F.2d
649, 654 (6th Cir. 1993). In making this evaluation, the
court must examine the evidence and draw all reasonable
inferences in favor of the non-moving party. Bender v.
Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984).
" 'The central issue is whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.'" Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting
In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th
this burden is met by the moving party, the non-moving
party's failure to make a showing that is "
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial," will mandate the entry of
summary judgment. Celotex, 477 U.S. at 322-23.
" [A] complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders
all other facts immaterial." Id. at 324. "
The test is whether the party bearing the burden of proof has
presented a jury question as to each element in the case. The
plaintiff must present more than a mere scintilla of the
evidence. To support his or her position, he or she must
present evidence on which the trier of fact could find for
the plaintiff." Davis v. McCourt, 226 F.3d 506,
511 (6th Cir. 2000) (internal quotation marks and citations
omitted). In doing so, the non-moving party may not rest upon
the mere allegations or denials of his pleadings, but the
response, by affidavits or as otherwise provided in Rule 56,
must set forth specific facts which demonstrate that there is
a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule
requires the non-moving party to introduce " evidence of
evidentiary quality" demonstrating the existence of a
material fact. Bailey v. Floyd County Bd. of Educ.,
106 F.3d 135, 145 (6th Cir. 1997); see
Anderson, 477 U.S. at 252 (holding that the
non-moving party must produce more than a scintilla of
evidence to survive summary judgment). " A party
asserting that a fact . . . is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record." Fed.R.Civ.P. 56(c)(1)(A). All
facts and factual inferences are drawn in favor of the
nonmovant. Tolan v. Cotton, 134 S.Ct. 1861, 1868,
188 L.Ed.2d 895 (2014) (" By weighing the evidence and
reaching factual inferences contrary
to Tolan's competent evidence, the court below neglected
to adhere to the fundamental principle that at the summary
judgment stage, reasonable inferences should be drawn in
favor of the nonmoving party." ).
Rule 56(e)(2) leaves no doubt about the obligation of a
summary judgment opponent to make [his] case with a showing
of facts that can be established by evidence that will be
admissible at trial. . . . In fact, '[t]he failure to
present any evidence to counter a well-supported motion for
summary judgment alone is grounds for granting the
motion.' Rule 56(e) identifies affidavits, depositions,
and answers to interrogatories as appropriate items that may
be used to support or oppose summary judgment."
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.
2009) (quoting Everson v. Leis, 556 F.3d 484, 496
(6th Cir. 2009)). " One of the principal purposes of the
summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this
purpose." Celotex, 477 U.S. at 323-34.
Plaintiff's Excessive Force Claims Against the Individual
To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege the violation of a right secured by the
Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting
under color of state law." West v. Atkins, 487
U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). "
There is a long-standing principle that government officials
are immune from civil liability under 42 U.S.C. § 1983
when performing discretionary duties so long as " their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Burgess v. Fischer, 735 F.3d 462, 472
(6th Cir. 2013) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "
In determining whether the government officials in this case
are entitled to qualified immunity, we ask two questions:
First, viewing the facts in the light most favorable to the
plaintiff, has the plaintiff shown that a constitutional
violation has occurred? Second, was the right clearly
established at the time of the violation?" Phillips
v. Roane County, Tenn., 534 F.3d 531, 538-39 (6th Cir.
2008). " The court may address these prongs in any
order, and if the plaintiff cannot make both showings, the
officer is entitled to qualified ...