United States District Court, E.D. Michigan, Southern Division
Steven Whalen, United States Magistrate Judge
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT 
Gershwin A. Drain, United States District Court Judge
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.
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.
reasons discussed herein, the Court DENIES Defendant's
Motion for Summary Judgment .
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).
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).
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).
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).
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).
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
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
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.
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).
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.
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.
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 ...