United States District Court, E.D. Michigan, Southern Division
R. Grand United States Magistrate Judge.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT  IN PART AND DENYING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT IN PART.
GERSHWIN A. DRAIN United States District Court Judge.
an excessive force action against four police officers and
the City of Lincoln Park. Plaintiff alleges both federal and
state theories for relief. Pending before the Court is
Defendants' Motion for Partial Summary Judgment . For
the reasons stated below, the Court will
GRANT Defendants' Motion IN
PART and DENY Defendants'
Motion IN PART.
night of November 21, 2013, James Barton (hereinafter
“Plaintiff”) and his friend Todd Daw went to the
Best Damn Bar & Grill in Lincoln Park. Dkt. No. 38, p. 9
(Pg. ID 364). The men got drunk, after consuming about seven
to nine beers each. Dkt. No. 38-8, pp. 10-11 (Pg. ID 404-05).
At about 1:30AM on November 22, 2013, the two men walked to
the Plaintiff's home. Id. The Plaintiff rented a
home in Lincoln Park with his girlfriend, Michelle Faulkner.
Id., p. 6 (Pg. ID 400). Once the two arrived at the
Plaintiff's home, Plaintiff asked his girlfriend to drive
Mr. Daw to his home. Id., p. 11 (Pg. ID 405). Ms.
Faulkner refused. Id. An argument ensued.
Id. While the arguing continued, Susan Ferrante (Ms.
Faulkner's daughter) called the police. Id. Four
Lincoln Park Police Officers responded to the call and
arrived at the home. Dkt. No. 38, p. 10 (Pg. ID 365).
Kerr and Lasinskas arrived first. Id. When the
officers arrived, Mr. Daw was outside of the home with
Bradley Dorow (Ms. Ferrante's boyfriend). Id.
The Plaintiff, Ms. Faulkner, and Ms. Ferrante were inside the
home, yelling at each other. Id.; Dkt. No. 38-3, p.
12 (Pg. ID 406). Officers Kerr and Lasinskas entered
Plaintiff's home and told the Plaintiff to quiet down.
Id. Dkt. No. 38-3, p. 12 (Pg. ID 406). After a few
minutes, the Plaintiff complied. Id.
later, Officers Pierson and Behrik arrived. Dkt. No. 38, pp.
10-11 (Pg. ID 365-66). Officers Pierson and Behrik talked to
Mr. Daw and Mr. Dorow outside. Id. Eventually,
Officer Pierson joined Officers Kerr and Lasinskas in the
home. Officer Behrik remained outside with Mr. Daw and Mr.
to the Plaintiff, Officers Kerr and Lasinskas grabbed the
Plaintiff's hand, twisted it, and then told the Plaintiff
that he was under arrest. Id. Plaintiff pulled his
hand away because his hand was broken and he recently had
surgery that inserted a rod into his arm. Id. Ms.
Faulkner and the Plaintiff explained the Plaintiff's
injury to the officers, and warned them not to bend his arm
because it was extremely painful. Id. Nevertheless,
Plaintiff claims that Officers Kerr and Lasinskas continued
to grab his hand, threw the Plaintiff to the floor, and
handcuffed him. Id. While on the floor, the
Plaintiff believes he was punched in his side and his lower
officers stood the Plaintiff up and proceeded to escort him
out of the house. Id., p. 12 (Pg. ID 367). A screen
door separated the home from outside. Id. Plaintiff
alleges that Officers Kerr and Pierson rammed the
Plaintiff's head into the aluminum screen door, which
caused a two-inch laceration on the Plaintiff's forehead.
later, Officers Kerr and Pierson escorted the Plaintiff to a
police vehicle. Id. Just as the Plaintiff began to
get into the vehicle, he claims that he was yanked out of the
car and one of the officers choked him. Id.
Throughout the entire altercation, Plaintiff alleges that
Officer Behrik - who remained outside with Mr. Daw and Mr.
Dorow - heard commotion, but did nothing. Id.
result of the force used against the Plaintiff during the
arrest and placement into the police vehicle, Plaintiff
claims to have suffered physical and mental injuries.
Id. In addition to the laceration on his head,
Plaintiff needed additional medical treatment on his hand and
arm and suffered back pain. Id. Plaintiff now spends
most of his days researching remedies to help alleviate his
anxiety and amplified nervousness. Id., p. 13 (Pg.
ID 368). In his Complaint, Plaintiff alleges three counts:
(1) excessive force pursuant to 42 U.S.C. § 1983 against
each officer; (2) Fourth Amendment violations against the
City of Lincoln Park; and (3) gross negligence against all
Rule of Civil Procedure 56(c) “directs that summary
judgment shall be granted if there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Cehrs v. Ne. Ohio
Alzheimer's Research Ctr., 155 F.3d 775, 779 (6th
Cir. 1998) (quotations omitted). The court must view the
facts, and draw reasonable inferences from those facts, in
the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of
material fact exists where the record “taken as a whole
could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elec. Indus., Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). Ultimately, the court evaluates
“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.” Anderson, 477 U.S. at 251-52, 106 S.Ct.
Plaintiff's Section 1983 Claims against Officer
Circuit] cases teach that, in order to hold Officer [Behrik]
liable for the use of excessive force, [Plaintiff] must prove
that [Officer Behrik] (1) actively participated in the use of
excessive force, (2) supervised the officer who used
excessive force, or (3) owed the victim a duty of protection
against the use of excessive force.” Turner v.
Scott, 119 F.3d 425, 429 (6th Cir. 1997). In this case,
the first two possibilities are not relevant. Plaintiff