United States District Court, E.D. Michigan, Southern Division
J. Tarnow Senior U.S. District Judge
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 
Steven Whalen U.S. Magistrate Judge
Derrick Thomas filed this civil rights lawsuit on April 21,
2015, alleging violations of his Fourth and Fourteenth
Amendment Rights under 42 U.S.C. § 1983 by Defendants,
Officer Mark Barr and the City of Eastpointe. Defendants
filed the Instant Motion for Summary Judgment  on May 31,
2016. Both parties have timely briefed the issues before the
Court: Plaintiff filed a Response to the Summary Judgment
Motion  on July 11, 2016, and Defendants filed a Reply
 on July 25, 2016. At the conclusion of a hearing held on
September 9, 2016, the Court took the motion under
reasons explained below, Defendants' Motion for Summary
Judgment  is DENIED IN PART and
GRANTED IN PART.
2013, Plaintiff Derrick Thomas lived with his girlfriend,
Georvanna Solomon, in a rental home in Eastpointe, Michigan.
On the evening of May 3, 2013, Mr. Thomas and Ms. Solomon
were visited there by Antoine Clements (Plaintiff's
relative) and Jennifer Lyles (Clements' girlfriend).
Plaintiff testified that he did not believe he or any of the
others drank alcohol that evening. Clements testified that
Plaintiff did not drink, but that Clements himself drank a
few beers and a half pint of vodka that Lyles brought.
evening transitioned into early morning, Clements and Lyles
began arguing, exchanging heated words and pushing each
other. Plaintiff testified that Clements shoved him once,
too. After Lyles and Clements exited the house, Plaintiff
placed four 911 calls in response to the confrontation. The
first dispatch report states: “Assault in progress . .
. Male and female yelling at each other. Male is assaulting
the female in the driveway and also damaging a vehicle. No
weapons seen.” The second dispatch report provides:
“We're getting multiple calls. They're gonna be
out in a driveway. Male assaulting a
female.” Defendant Barr and Officer Jeffery Mezner
reported to the scene in separate cars. Barr drove up
immediately behind Mezner.
Court has had the opportunity to examine video footage
recorded by the officers' dashboard cameras. The video
from Defendant Barr's vehicle shows that when Plaintiff
and Clements first came into Barr's view, Clements was
lying in the street, near the sidewalk on Barr's right.
Plaintiff stood close to Clements when the officers arrived,
but walked away from him, across the street toward the
sidewalk on Barr's left. A third individual also stood
nearby in the street, slightly further down the road.
Plaintiff, Clements, and the third individual did not appear
to be interacting at that time. As the officers pulled up,
Plaintiff crossed to the left sidewalk and began walking down
the street, away from the officers. Meanwhile, the third
person walked closer to Clements; however, as Clements began
to pick himself up, the third individual turned around and
followed Plaintiff. Clements stood and walked toward the left
sidewalk around the same time that the officers exited their
vehicles and approached him.
video footage shows that shortly after Clements started
walking, Plaintiff jogged towards Clements while someone
repeatedly said “What you gonna do?” in an
aggressive tone. Plaintiff's hands were at his sides,
near his waist, and the officers appeared to be close enough
to see that he was not holding a weapon. Plaintiff was within
arm's reach of Clements but did not strike him or visibly
prepare to strike him. At that time, the officers were also
fairly close to Clements. Plaintiff began to turn away from
Clements and the officers around the same time that Defendant
Barr said, “Both of you guys get on the fucking
ground.” As Plaintiff walked away at a normal pace,
Barr repeated, “Get on the ground.” Barr followed
Plaintiff while Mezner approached Clements, saying,
“Get on the ground.” When asked how Plaintiff
responded to the officers' commands to get on the ground,
Barr testified that Plaintiff “acted like [the
officers] weren't even there” and “just kept
tased Plaintiff approximately five to ten seconds after
ordering Plaintiff to get on the ground. Barr did not warn
Plaintiff that he would be tased if he failed to comply. Barr
and Mezner acknowledged during depositions that under city
policy, officers are supposed to issue a warning before
tasing an individual if possible under the
circumstances. Barr testified that he did not think a
warning was prudent, explaining: “Everything was
unfolding fast and … I didn't know what his
intentions were, he was facing away from me, I couldn't
see his hands, I didn't know … [if he had] any
kind of weapons.”
fell to the ground after being tased. Defendant Barr, joined
occasionally by Mezner (who also kept watch over Clements),
proceeded to handcuff Plaintiff and take him to his car. The
manner in which the handcuffing occurred is disputed.
Plaintiff testified that after he fell to the ground, an
officer did something that caused a part of the officer's
body to forcefully collide with Plaintiff's back.
Plaintiff initially testified that the officer “jumped
on [his] back hard, ” but then admitted that he did not
know exactly what happened or what part of the officer's
body collided with him. Plaintiff also testified that the
officer grabbed one of his arms and pushed it forcefully to
the back of his head while telling Plaintiff to stop
resisting. The officer then allegedly grabbed Plaintiff's
other arm and applied handcuffs to his right wrist and his
left elbow. Plaintiff conceded that, at the time, he did not
ask the officers to move his handcuffs or tell them that his
elbow hurt while he was on the ground. Plaintiff testified
that two officers helped Plaintiff stand. He testified that
the officer on his right side helped him up “the right
way, ” but the officer on his left side yanked him up
by his handcuffs.
officers' account of the handcuffing process differs from
Plaintiff's. Both officers admitted at the depositions
that Plaintiff was compliant during the arrest process.
However, Defendant Barr denied jumping on Plaintiff's
back or putting any weight on him. He also denied cuffing
Plaintiff in the area of his forearm and elbow, testifying
that he applied both cuffs to Plaintiff's wrists. He
stated that he checked whether the cuffs were properly spaced
by inserting a finger into the cuffs and double locking them.
Finally, he testified that he grabbed Plaintiff by his arms
or beneath his arms (not by the handcuffs) when helping him
to his feet. Mezner testified that Defendant Barr asked
Plaintiff to put his hands behind his back before cuffing
him, and that Plaintiff complied. He testified that Barr
cuffed Plaintiff's wrists (not his elbow) and checked the
cuffs' tightness by double locking them. Mezner explained
that both officers assisted Plaintiff to his feet, but did
not explain how they did so.
videos do not clearly depict the handcuffing process.
However, on the dashboard video from Defendant Barr's
car, Barr can be heard telling Plaintiff to put his hands
behind his back and to hold his palms together in a
“praying” position. Shortly thereafter, Plaintiff
asks, “Like this?” Barr repeats his command and
promptly says, “There you go. Just like
that.” At one point, it looks like an officer
standing next to Plaintiff drops a flashlight, and Plaintiff
immediately says, “Ow. What the hell was
officers walked Plaintiff to Defendant Barr's car. The
video from Mezner's car shows the officers stopping
briefly; they appear to manipulate something behind
Plaintiff's back-possibly his handcuffs. Camera 2 on
Defendants' Exhibit F shows Plaintiff in the back seat of
Barr's car from the moment he is placed in it through the
moment he exits the car at the police station. Starting
around 4:16:17, Plaintiff says several times that his cuffs
are too tight. At that time, it seem that he is alone in the
car-Defendant Barr does not appear to enter the car until
several minutes later, around 4:23:05. Around that time,
Plaintiff starts speaking with Defendant Barr (Barr is not
visible on camera, but his identity can be inferred because
he mentions that he tased Plaintiff). Approximately three
minutes later, Plaintiff seems to say, “Sir, my arms
hurt. My arms are tired.” Periodically thereafter,
Plaintiff starts leaning his body and moving his arms in a
manner that could indicate discomfort. During such
movements, the cuffs occasionally come into view, affixed to
his wrists or slightly above his wrists (not his left
elbow). When Officer Barr gets back into the
vehicle and begins driving away from the scene, Plaintiff
says, “Hey, can you take these cuffs off, man? My wrist
is bleeding.” The car pulls to a stop at the police
station about one-and-a-half minutes later.
Plaintiff complained to jail staff that he was injured, he
was taken to St. John Hospital. He was diagnosed with a
fractured radial head, and his arm was put in a sling.
Plaintiff testified that he believed Defendant Barr caused
the fracture when he grabbed Plaintiff's left arm and
pushed it forcefully up to Plaintiff's head before
applying the cuffs.
December 6, 2013, in the 38th District Court in
Eastpointe, Michigan, Plaintiff pled guilty to a misdemeanor
charge of hindering and obstructing arrest arising from the
May 4, 2013 incident. When asked during his plea hearing to
identify the factual basis for his plea, Plaintiff testified
that he walked by a fight in which he was not involved, an
officer responding to the fight ordered him to stop, and he
question on summary judgment is whether the moving party has
demonstrated that the evidence available to the court
establishes no genuine issue of material fact such that it is
entitled to a judgment as a matter of law.”
Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d
551, 554 (6th Cir. 2009). The moving party has the burden of
establishing that there are no genuine issues of material
fact, which may be accomplished by demonstrating that the
nonmoving party lacks evidence to support an essential
element of its case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A genuine issue of material fact exists
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, 248 (1986). The
Court must construe the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); see
also Kalamazoo Acquisitions, L.L.C. v. Westfield Ins.
Co., 395 F.3d 338, 342 (6th Cir. 2005). The nonmoving
party “may not avoid a properly supported motion for
summary judgment by simply arguing that it relies solely or
in part upon credibility considerations … [but
instead] must present affirmative evidence.”
Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d
348, 353 (6th Cir. 2004) (quoting Cox v. Ky. Dep't of
Transp., 53 F.3d 146, 150 (6th Cir. 1995)).
Plaintiff's Excessive Force Claims Against Officer
argues that Defendant Barr employed excessive force by (1)
tasing him and (2) handcuffing him in a harmful manner. The
question of whether force employed in a seizure is excessive
does not turn on the extent or even the existence of injury.
Miller v. Samilac County, 606 F.3d 240, 252-54 (6th
Cir. 2010) (citing Pigram ex rel. Pigram v.
Chaudoin, 199 F.App'x 509, 513 (6th Cir. 2006)
(denying qualified immunity on a Fourth Amendment excessive
force claim to an officer who slapped a suspect in the face,
causing no injury)). Instead, “[t]o make a showing of
excessive force ‘under the Fourth Amendment, [courts]
apply an objective reasonableness test, looking to the
reasonableness of the force in light of the totality of the
circumstances confronting the defendants, and not to the
underlying intent or motivation of the
defendants.'” Gorney v. Charter Twp. of
Brownstone, No. 14-12731, 2016 U.S. Dist. LEXIS 116892,
at *21 (E.D. Mich. Aug. 31, 2016) (citing Burgess v.
Fischer, 735 F.3d 462, 472 (6th Cir. 2013)); see
also Graham v. Connor, 490 U.S. 386, 397 (1989).
consider three factors “in evaluating an excessive
force claim: the severity of the crime, whether the suspect
posed an immediate threat to the safety of officers or
others, and whether the suspect actively resisted arrest or
attempted to evade arrest by flight.” Miller,
606 F.3d at 253 (citing Graham, 490 U.S. at 396).
The Court must view the facts “from the perspective of
a reasonable officer on the scene.” Id. at 251
(citing Graham, 490 U.S. at 395-96).
Barr argues that he is entitled to qualified immunity.
“To determine whether an officer is entitled to
qualified immunity, a court evaluates two independent prongs:
whether the officer's conduct violated a constitutional
right, and whether that right was clearly established at the
time of the incident.” Richko v. Wayne County,