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Carter v. Carter

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

March 29, 2017

MARC CARTER, Plaintiff,
v.
ANDREW CARTER, JOSEPH MONTGOMERY, NICHOLAS KRINGS, and DEPUTY GALIMBERT, Defendants.

          Magistrate Judge, Mona K. Majzoub

          OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, OVERRULING IN PART DEFENDANTS' OBJECTIONS, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND CONTINUING ORDER OF REFERENCE

          DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE

         Plaintiff Marc Carter, a Michigan prisoner representing himself, filed this lawsuit under 42 U.S.C. § 1983 against Washtenaw County, Michigan Deputy Sheriffs who arrested and beat him following a high speed chase. The plaintiff contended in a complaint that the officers used excessive force in effectuating the arrest, thereby violating his Fourth Amendment rights. The Court referred the case to United States Magistrate Judge Mona K. Majzoub under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3) to conduct pretrial proceedings. Thereafter, the defendants filed a motion for summary judgment. Judge Majzoub filed a report on January 24, 2017 recommending that the defendants' motion be denied in the main, although she recommended dismissal of the plaintiff's state law claim for gross negligence. The plaintiff did not object to the report and recommendation, but the defendants filed timely objections, and the matter is now before the Court for fresh review.

         I.

         The facts of the case - and the parties' competing versions of them - were summarized throughly by the magistrate judge. Therefore, only a brief summary is necessary here. The events occurred on August 9, 2012, when the plaintiff's dangerous driving caught the attention of the Eastern Michigan University police. The plaintiff was driving a stolen car, and engaged officers from the Ypsilanti Police Department and deputies of the Washtenaw County Sheriff Department in a high-speed chase. The pursuit continued for more than 10 minutes, until the plaintiff lost control of his vehicle in a residential neighborhood, struck a curb, and crashed into a ditch. A pursuing police cruiser slid to a halt on the muddy road and hit the driver side door of the vehicle, bending it backwards. The plaintiff then leaped over the door and the hood of the police cruiser and tried to flee. Deputy Montgomery got out of the cruiser, quickly caught up with Carter, and grabbed him from behind. The parties agree on these facts. Their stories diverge from that point on.

         The defendants maintain that the plaintiff attempted to flee until he was subdued. They say that he continued to resist arrest, which necessitated the “administ[ration of] three strikes in an attempt to hit Carter's brachial plexus, ” and “three additional strikes in an attempt to hit [his] suprascapular nerve.” The plaintiff was taken to the ground, but, say the defendants, he “continued to struggle” and “refused to be handcuffed, ” holding his arms underneath his body until the blows from the police subdued him and he was handcuffed. All of this, they say, took about 20 seconds.

         The plaintiff insists that the force used to subdue him was excessive. He says that Deputy Carter, “punched [him] in the face unnecessarily” and “beat” him as Montgomery was holding him, that Montgomery “kicked [him on his left side] when [he] was down” and that when Montgomery kicked him, he was laying on the ground, on his right side. The plaintiff stated that Deputy Krings punched him twice in the front of his chest, also while he was on the ground. He said that Deputy Galimbert “probably” hit or kicked him while he was on the ground, and also asserted that Galimbert “didn't stop [the other officers] from beating” him. The plaintiff testified that the beating while he was on the ground lasted “a while, ” which he estimated to be around 45 seconds.

         At least one of the police vehicles was equipped with a dash camera, but the defendants concede that “this part of the parties' interaction occurs just outside the frame of the video footage.” Also in the record is a transcript of a guilty plea colloquy from the state court proceedings in which the plaintiff was convicted of several charges related to the August 9, 2012 flight and apprehension, including felony resisting arrest. The defendants took the plaintiff's deposition, which is part of the record as well.

         The plaintiff filed his complaint on September 9, 2014. In four counts, the complaint raises claims against the individual defendants via 42 U.S.C. § 1983 for excessive force (count I) and failure to intervene to prevent the use of excessive force (count II), and under state law for gross negligence (count III), and intentional infliction of emotional distress (IIED) (count IV). As noted, the defendants moved for summary judgment. The plaintiff did not file a response to the motion.

         In her report on the defendants' motion for summary judgment, Magistrate Judge Majzoub recommended that the defendants' motion be granted in part and the claim for gross negligence be dismissed because there is no free-standing cause of action for “gross negligence” premised on conduct that amounts to an excessive use of force. However, she concluded that the excessive force and IIED claims should be allowed to proceed, based on the variance between the parties' accounts of the apprehension, and because the video record of the event does not unambiguously resolve their conflicting accounts.

         The magistrate judge also found that the defendants were not entitled to qualified immunity, because the right to be free from excessive force during the course of an arrest is well established, and a jury reasonably could conclude that the defendants' acts were unreasonably excessive when they kicked and punched the plaintiff, more than once, while he was semi-conscious and “balled up on the ground in a fetal position to protect himself from Defendants' strikes, ” offering nothing more than “passive resistance” to their attempts to place him in handcuffs.

         The magistrate judge concluded that the IIED claim should proceed because the plaintiff's testimony minimally sufficed to show that the defendants intentionally inflicted a severe beating on him that left him “traumatized, ” and a jury reasonably could conclude that their conduct was “malicious, ” so that they would not be entitled to state law governmental immunity. Finally, the magistrate judge found that, notwithstanding whether the conviction for resisting arrest comprised as a necessary element that the arrest was “lawful, ” the recent decisions of federal and state courts on point support the position that an arrest can be “lawful” even if excessive force is used to accomplish it, and, therefore, the state did not necessarily have to prove - nor was the plaintiff compelled to admit in the course of entering his guilty plea - that no excessive force was applied by the defendants.

         The plaintiff did not object to the report and recommendation. The defendants filed objections to the report and recommendation, citing five grounds.

         II.

         The filing of timely objections to a report and recommendation requires the Court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the Court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “[T]he failure to file specific objections to a ...


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