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Brenay v. Schartow

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

November 30, 2016

DENNIS F. BRENAY, SR. and LINDA BRENAY, Plaintiffs,
v.
MICHAEL SCHARTOW, et al, Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          THOMAS L. LUDINGTON United States District Judge.

         Plaintiffs Dennis F. Brenay, Sr., and Linda Brenay brought suit against Defendants Michael Schartow, Kyle Glocksine, Troy Sierras, City of Essexville, and Bay City on September 10, 2015. Compl., ECF No. 1. Plaintiffs alleged two claims in the Complaint. The first, brought pursuant to 42 U.S.C. § 1983 against the individual officers, alleges that Defendants unlawfully entered Plaintiffs' home, used excessive force, and caused Brenay, Sr., to be arrested without probable cause. Id. at 14-15. The second, brought against the City of Essexville and Bay City pursuant to § 1983, alleges a policy and practice of inadequate training and supervision. Id. at 15-17. Plaintiffs contend that the officer Defendants violated their constitutional rights when attempting to arrest their son, Dennis Brenay, Jr., for a personal protective order violation. On September 6, 2016, the parties submitted a stipulated proposed order for the dismissal of Defendant Kyle Glocksine. ECF No. 29. At the close of discovery, the remaining Defendants filed motions for summary judgment. ECF Nos. 31, 32. On October 17, 2016, the parties submitted stipulated proposed orders for the dismissal of Defendants City of Essexville and Bay City. ECF Nos. 35, 36. Defendants' motions for summary judgment as to the remaining Defendants will be granted for the reasons stated below.

         I.

         Plaintiff Dennis F. Brenay, Sr., has been a resident of Essexville for over twenty years. Dennis, Sr., Dep. at 6, ECF No. 42, Ex. E. He and his wife, Linda Brenay, have been married since 1973. Id. The couple live with their son, Dennis F. Brenay, Jr., [1] at a home in Essexville. Id. Defendant Michael Schartow is a sergeant with the Essexville Public Safety Department. Sierras Rep, ECF No. 40, Ex. 4. Defendant Kyle Glocksine is also an officer with the Essexville Public Safety Department. Id. Defendant Troy Sierras is an officer with the Bay City Police Department. Id.

         A.

         On November 30, 2013, Defendant Sierras responded to a reported personal protective order violation. Jury Trial Tr. at 166, ECF No. 40, Ex. 1. After interviewing the alleged victim, Sierras learned that the subject of the protective order was Brenay, Jr. Id. The alleged victim reported that Brenay, Jr., had sent her several text messages and posted a photo of himself and the victim on Facebook. Sierras Rep. at 2. Sierras requested assistance from Sergeant Schartow and Officer Glocksine in contacting Brenay, Jr. Id.

         The officers arrived at the Brenay residence and rang the bell. Id. Brenay, Sr., answered. Id. The Brenay residence's front entrance has two doors: an outer glass storm door and an inner steel door. Brenay, Sr., Dep. at 54-57. After being told that the officers were looking for Brenay, Jr., Brenay, Sr., closed the doors. Sierras Rep. at 2. According to the officers, Brenay, Sr., “slammed” the door. Id. Brenay, Sr., explains that he lost his balance as he was closing the door, causing the door to close loudly. Brenay, Sr., Dep. at 55.

         B.

         After Brenay, Jr., came downstairs, Brenay, Sr., opened the door again. Id. at 58. Brenay, Sr., stood in the doorway with his hand on the door frame, holding the glass storm door open. Id. at 58-59; Glocksine Rep at 2, ECF No. 40, Ex. 4. Brenay, Jr., was standing immediately behind his father. See Brenay, Sr., Dep. at 58; Glocksine Rep. at 2; Linda Brenay Dep. at 49-53, ECF No. 42, Ex. F. According to Brenay, Sr., his son was standing approximately six inches from the door frame and about a foot from the outside of the house. Brenay, Sr., Dep. at 59. According to Schartow, Brenay, Jr., was standing a “few feet” away from Officer Sierras. Prelim. Exam. at 10, ECF No. 40, Ex. 2. Linda Brenay was standing behind Brenay, Sr., close behind Brenay, Jr. Linda Brenay Dep. at 50-51. See also Photos from Brenay, Jr., Dep., ECF No. 32, Exs. G, H (photos of the entryway that Brenay, Jr., marked with his location and which indicate that he stood close beside or just immediately behind Brenay, Sr.).

         Officer Sierras questioned Brenay, Jr., for several minutes about the alleged personal protective order violation. Brenay, Sr., Dep. at 158-61. The officers asked Brenay, Jr., to come outside onto the porch several times, but Brenay, Jr., and his parents declined. Sierras Rep. at 2. Brenay, Sr., and Linda Brenay attempted to interject periodically. Id. At one point, Brenay, Sr., asked if he could pose a question to the officers. Id. at 161. According to Brenay, Sr., Sierras refused to allow Brenay, Sr., to ask a question. Id. In response, Brenay, Sr., raised his hands in the air. Id. Because Brenay, Sr., had taken his hand off of the storm door, it began to close. Id. at 161-62. In his deposition, Brenay, Sr., indicated that he did not intend to shut the door in the officers' faces. However, the officers interpreted the closing glass door as an intentional attempt to end the conversation. Glocksine Rep. at 2; Sierras Rep. at 2. Brenay, Sr., testified that he immediately began to push the door open again. Brenay, Sr., Dep. at 163-164. The police reports contradict that representation. Glocksine Rep. at 2; Sierras Rep. at 2.

         Schartow then grabbed the storm door and began pulling it back open. Brenay, Sr., Dep. at 164-65; Glocksine Rep. at 2; Sierras Rep. at 2. At the same time, Sierras grabbed Brenay, Jr., by the wrist and pulled. Sierras Rep. at 2. According to the officers, Sierras also informed Brenay, Jr., that he was under arrest at this point. Glocksine Rep. at 2; Sierras Rep. at 2. Brenay, Sr., testified in his deposition that he never heard the officers indicate that Brenay, Jr., was under arrest. Brenay, Sr., Dep. at 164. Likewise, Linda Brenay testified that she never heard the officer say he was going to arrest Brenay, Jr. Linda Brenay Dep. at 60-61. However, Brenay, Jr., admitted in his deposition that the officer told Brenay, Jr., that he would be going with the officers and that Brenay, Jr., understood that he was being arrested. Brenay, Jr., Dep. at 75-76.

         C.

         At this point, the parties' stories diverge. According to Brenay, Jr., Sierras then pushed him “back into the house” and tried to taser him. Brenay, Jr., Dep. at 77. According to Linda Brenay, Sierras was trying to pull Brenay, Jr., out of the house, while Brenay, Jr., was resisting and pulling back towards the house. Linda Brenay Dep. at 159-160. Brenay, Sr., testified that Sierras slammed Brenay, Sr., into the steel door as Sierras was attempting to grab his son. Brenay, Sr., Dep. at 69-71. Brenay, Sr., denied pushing any of the officers or attempting to interfere. Trial Tr. III at 44, ECF No. 40, Ex. 3.

         According to Sierras:

I told Brenay Jr. that he was under arrest for violating the PPO. I grabbed his wrist and attempted to pull him to me. Brenay Sr. still attempted to shut the door. I pushed the door back with my left hand and held onto Brenay Jr. with my right. I yelled, “He's under arrest!” One of the Essexville officers pushed on the door and I was able to grasp Brenay Jr. with both hands. I ordered Brenay Jr. to come outside. His parents pulled him further into the hallway. I was pulled into the doorway.

Sierras Rep. at 2.

         According to Glocksine:

Ofc. Sierras was able to stop the door from being shut and advised Dennis Jr., Dennis Sr., and Mrs. Brenay that Dennis Jr. was under arrest for the PPO violation and would be going with him this evening. Dennis Sr. again tried to pull the door closed on these officer's and Ofc. Sierras was able to reach into the residence and grab ahold of Dennis Jr.'s arm. At this point Sgt. Schartow grabbed the door that Dennis Sr. was still trying to close and was able to pull it out of his hands so that officer's could get to Dennis Jr. Ofc. Sierras was telling Dennis Jr. that he was under arrest and told him to come outside. During this time Dennis Jr. was trying to pull away from Ofc. Sierras and Dennis Sr. was trying to get ...

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