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Thomas v. City of Eastpointe

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

October 20, 2016

Derrick Thomas, Plaintiffs,
City of Eastpointe and Mark Barr, Defendants.

          Arthur J. Tarnow Senior U.S. District Judge


          R. Steven Whalen U.S. Magistrate Judge

         Plaintiff 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 [26] on May 31, 2016. Both parties have timely briefed the issues before the Court: Plaintiff filed a Response to the Summary Judgment Motion [32] on July 11, 2016, and Defendants filed a Reply [35] on July 25, 2016. At the conclusion of a hearing held on September 9, 2016, the Court took the motion under advisement.

         For the reasons explained below, Defendants' Motion for Summary Judgment [26] is DENIED IN PART and GRANTED IN PART.

         Factual Background

         In May 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.

         As the 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 followed.

         Neighbors 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.”[1] The second dispatch report provides: “We're getting multiple calls. They're gonna be out in a driveway. Male assaulting a female.”[2] Defendant Barr and Officer Jeffery Mezner reported to the scene in separate cars. Barr drove up immediately behind Mezner.

         The 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.

         The 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 walking away.”[3]

         Barr 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.[4] 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.”[5]

         Plaintiff 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, ”[6] 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.[7]

         The 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.

         The 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?”[8] Barr repeats his command and promptly says, “There you go. Just like that.”[9] At one point, it looks like an officer standing next to Plaintiff drops a flashlight, and Plaintiff immediately says, “Ow. What the hell was that?”[10]

         The 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.[11] 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.”[12] Periodically thereafter, Plaintiff starts leaning his body and moving his arms in a manner that could indicate discomfort.[13] During such movements, the cuffs occasionally come into view, affixed to his wrists or slightly above his wrists (not his left elbow).[14] 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.”[15] The car pulls to a stop at the police station about one-and-a-half minutes later.

         After 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.

         On 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 walked away.

         Summary Judgment Standard

         “The 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)).


         I. Plaintiff's Excessive Force Claims Against Officer Barr

         Plaintiff 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).

         Courts 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).

         Defendant 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, ...

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