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Mitchell v. Salisbury

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

March 27, 2017

David Alan Mitchell, Plaintiff,
v.
Dwaine Salisbury, Defendant.

          R. Steven Whalen, United States Magistrate Judge

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [27]

          Hon. Gershwin A. Drain, United States District Court Judge

         I. Introduction

         On February 16, 2016, David Mitchell (“Plaintiff” or “Mitchell”) commenced this action against the City of Warren and six City of Warren police officers (collectively, “Defendants”). Dkt. No. 1, pp. 1-2 (Pg. ID No. 1-2). Plaintiff filed his First Amended Complaint and alleging two counts (an excessive force claim and a warrantless search and seizure claim) against only Defendant Dwaine Salisbury. Dkt. No. 22.

         The matter is presently before the Court on Defendant's Motion for Summary Judgment on January 10, 2017. Dkt. No. 27. On March 22, 2017, the Court conducted a hearing on the motion and heard oral arguments from counsel.

         For the reasons discussed herein, the Court DENIES Defendant's Motion for Summary Judgment [27].

         II. Background

         On February 25, 2014, Plaintiff was driving in the City of Warren when he was pulled over for swerving at 6:41 p.m. Dkt. No. 29-4, p. 2 (Pg. ID 617). Officer Zayto found an open can of Miller High Life beer near the center console and issued Plaintiff a citation for open intoxicant in a vehicle. Id. Plaintiff did not contest the ticket and paid it by mail so that he would not need to appear in court. Dkt. No. 29-2, p. 27 (Pg. ID 590). Plaintiff's vehicle was impounded following the issuance of the citation. Id. at 14 (Pg. ID 577).

         Plaintiff then walked over to his friend Eddie Bush's (“Bush”) house, where the two embarked on a trip to a liquor store to buy more beer. Id. The men noted prior to their departure that the vehicle Bush was driving had malfunctioning front headlight. Id. After the men departed the liquor store, Bush noticed a police vehicle following the car. Id. Rather than stopping immediately once the police car's lights went on, Bush continued driving until he got to his driveway. Id. at 14-15 (Pg. ID 577-78). Defendant Salisbury states that the reason for the stop was that both lights illuminating the license plate were burned out, making the license plate unreadable. Dkt. No. 29-3, p. 8 (Pg. ID 603); Dkt. No. 29-6, p. 11 (Pg. ID 640).

         When Defendant asked Bush for his driver's license, registration, and proof of insurance, Bush stated that he did not have the materials and was driving on a suspended license. Dkt. No. 29-6, p. 6 (Pg. ID 635). Bush was ordered to exit the vehicle. Id. While he was being searched, Bush threw a bag of crack cocaine he was holding and pushed officers away. Id. Defendant was unable to maintain his grip on Bush due to the icy and slippery conditions, and Bush fled on foot. Id. Plaintiff said it appeared that Bush “clothes lined or shoved” the officers, prior to fleeing. Dkt. No. 29-2, p. 15 (Pg. ID 578). Officers apprehended Bush, handcuffed him, and escorted him back to the vehicle. Dkt. No. 29-3, p. 12 (Pg. ID 607).

         Defendant ordered Plaintiff to exit Bush's vehicle so that it could be searched prior to being towed and impounded. Dkt. No. 29-3, p. 19 (Pg. ID 614). Plaintiff was compliant the entire time. Id. at 13 (Pg. ID 608). Defendant searched Plaintiff because there had been narcotics in the vehicle, and recalls that Plaintiff consented to the search. Id. at 19 (Pg. ID 614). Plaintiff states that Defendant performed a pat-down search on him and then had him wait in the back seat of the vehicle. Dkt. No. 29-2, pp. 18-19 (Pg. ID 581-82). Plaintiff asked if he was under arrest three times and each time, he claims Defendant responded, “You're coming with me.” Id. at 19 (Pg. ID 582). Defendant recalls telling Plaintiff that he was not under arrest, and that Plaintiff could be on his way as soon as Defendant ran his name to check for warrants. Dkt. 29-3, p. 13 (Pg. ID 608).

         After Plaintiff's name came up clean, Defendant had Plaintiff walk down the driveway to wait in the police vehicle while an inventory search was performed on Bush's car. Id. Defendant testified that the two men walked freely, side by side, down the driveway's slippery incline. Id. Plaintiff recalls that Defendant had grabbed ahold of his coat and pulled him to the police vehicle. Dkt. No. 29-2, p. 19 (Pg. ID 582). Both men remember struggling to maintain their balance while walking on the slick ice, but Plaintiff does not believe Defendant slipped to the same extent that he did. Id. (“I was trying not to lose my balance and footing.”); Dkt. No. 29-3, pp. 13-14 (Pg. ID 608-09) (“It was a chore just to keep our balance, both of us were slipping pretty good.”). Plaintiff slipped and fell on the ice, and he attributes this fall to Defendant pulling him across the slippery surface faster than he would have ordinarily walked. Dkt. No. 29-2, p. 19, 29 (Pg. ID 582, 592) (“The officer yanked back and forth on me like you would escort someone to load them into a vehicle. When he yanked back, my feet went out and as he yanked down I was on my way to the ground already.”). As a result of the fall, Plaintiff fractured his wrist. Id. at 17 (Pg. ID 580).

         While both Defendant and Plaintiff agree that the driveway and road area were covered by a sheet of ice and extremely slippery, their recollections diverge more substantially at the point after which Plaintiff fell and broke his wrist. See Dkt. No. 29-2, p. 19 (Pg. ID 582) (including an estimate by Plaintiff that the ice on the sloped driveway was ten inches thick).

         While Plaintiff was on the ground, he believes that Defendant slammed a knee into his back, pinning him down while Defendant looked for drugs he suspected Plaintiff threw under the police vehicle. Id. Plaintiff later stated, however, that he was uncertain if Defendant intentionally fell on Plaintiff's back, or if Defendant had slipped and accidentally fell on him. Dkt. No. 29-2, p. 20 (Pg. ID 583). Plaintiff states that Defendant then attempted to pick him up and help him into the police vehicle, but slipped and fell on the ice, dropping both of them. Dkt. No. 29-2, p. 17 (Pg. ID 580). On his second try, Plaintiff recalls that Defendant successfully picked him up and pulled him into the vehicle. Id. Once inside the vehicle, Plaintiff states that Defendant kneed him in the buttocks, launching him across the backseat and “bust[ing his] head open on the arm rest.” Id.

         Defendant alleges that Plaintiff got stuck under the police vehicle after he slipped on the ice and broke his wrist. Dkt. No. 29-3, p. 14 (Pg. ID 609). Defendant recalls trying to pull Plaintiff out from under the vehicle, asking Plaintiff to help push himself out, until Plaintiff was finally dislodged. Id. at 15 (Pg. ID 610). Defendant states that Plaintiff then sat in the seat of the police vehicle and complained of arm pain for the next ten minutes, until Defendant's partner returned. Id.

         Plaintiff did not request an ambulance. Dkt. No. 29-2, p. 21 (Pg. ID 584) (“There was no need for an ambulance.”). Defendant stated that Plaintiff declined his offer to call for an ambulance because he did not have insurance. Dkt. No. 29-3, p. 19 (Pg. ID 614). Defendant drove Plaintiff to St. John Macomb Hospital and dropped him off. Dkt. No. 29-2, p. 20 (Pg. ID 583). The hospital physician informed Plaintiff that he would need an orthopedic surgeon to set his wrist, due to the nature of the fracture. Id. at 21 (Pg. ID 584); Dkt. No. 29-10, p. 21 (Pg. ID 680). Plaintiff was prescribed Tylenol with Codeine, given a splint and sling, and released. Dkt. No. 27-5, pp. 7, 12 (Pg. ID 504, 509).

         Plaintiff did not have insurance to pay for an orthopedic surgeon, so he called the Warren police station to get them to pay for his treatment. Dkt. No. 29-2, p. 22 (Pg. ID 585). He did not file any complaints against the officers involved and declined to meet with the commanding officer because he had decided to sue. Id.

         Plaintiff visited the emergency room at St. Joseph's hospital a few days later on March 2, 2014. Dkt. No. 29-11. St. Joseph's physicians confirmed that Plaintiff had a wrist fracture, placed his wrist in another splint, recommended Plaintiff see an orthopedic surgeon, and discharged him. Id. at 8 (Pg. ID 700). Plaintiff saw a physician at Community Orthopedic Surgery on March 4, 2014, who applied a cast. Dkt. No. 29-12, p. 4 (Pg. ID 739). Plaintiff did not have his wrist re-broken and set with pins because he did not have insurance to pay for the procedure.

         Plaintiff alleges that he now only has half strength in his wrist and deals with constant pain. Dkt. No. 29-2, p. 31 (Pg. ID 594). He also alleges loss of income because he believes the Social Security Administration denied his ...


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