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Miller v. Rybicki

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

April 25, 2017

KELLEY RYBICKI et al., Defendants.



         On September 4, 2012, Plaintiff James Kyle Miller (“Miller”) went to a bar, drank 10-15 shots of whiskey and four beers in a relatively short time frame, got into a profanity-laced shouting match with bar staff and customers, threatened to kill bar patrons, and threw broken bar glasses at them. Unsurprisingly, the night did not end well for Miller. After the altercation at the bar, Miller fled on foot into a densely wooded area. A police tracking dog eventually located Miller, bit him, and held the bite until officers could subdue him and safely take him into custody. Miller was charged with (1) felonious assault and (2) resisting and obstructing a police officer, but both charges were ultimately dismissed.

         In this action, Miller asserts claims under 42 U.S.C. § 1983 against the officers, police agencies, and governmental units involved in his seizure, arrest, and prosecution. (See Compl., ECF #1.) In an Opinion and Order dated February 16, 2016, the Court dismissed some of Miller's claims and allowed others to proceed to discovery (the “Initial Opinion and Order”). (See ECF #20.) Defendants now move for summary judgment on Miller's remaining claims (the “Motions”). (See ECF ## 25, 26.) For the reasons that follow, the Court GRANTS summary judgment in favor of the Defendants on all of Miller's remaining claims.


         The Court's Initial Opinion and Order described the factual background of this action. (See ECF #20 at Pg. ID 372-75.) The Court incorporates that background here and sets forth below only those facts essential to the resolution of the claims now before the Court.

         On September 4, 2012, Miller and his cousin Curtis Brown (“Brown”) went to the Lost Shoe Tavern in Jackson County, Michigan, between 8:00 and 9:00 p.m. (See Miller Dep. at 100, ECF #26-2 at Pg. ID 499.) Over the next several hours, Miller drank heavily. He consumed between 10-15 shots of “Jack Daniel's” whiskey and four “Bud Light” beers. (Id. at 100-103, ECF #26-2 at Pg. ID 499-500.) His blood alcohol level was at least .20 (see Id. at 70, ECF #26-2 at Pg. ID 492) - over the so-called “superdrunk” threshold in Michigan's drunk driving laws. See M.C.L. § 257.625.

         Brown also drank heavily and became “pretty drunk.” (Miller Dep. at 106, ECF #26-2 at Pg. ID 501.) Brown eventually began “[y]elling, screaming, ” and using “profanity.” (Id. at 106, ECF #26-2 at Pg. ID 501.) By that time, the bartender had had enough of Brown's antics, and she told Miller to take Brown home. (See Id. at 109-10, ECF #26-2 at Pg. ID 502.) In response, Miller “told her it was bullshit [that she] was making me drive him home drunk.” (Id. at 110, ECF #26-2 at Pg. ID 502.)

         Brown eventually made his way to the parking lot and started “bang[ing]” on several cars. (Id. at 111, ECF #26-2 at Pg. ID 502.) Miller, several bar patrons, and bar staff followed Brown outside to investigate his destructive conduct. One of these individuals accused Brown of smashing her truck, and Brown replied that he “hit it because they cut me off. Bullshit.” (Id. at 114, ECF #26-2 at Pg. ID 503.) Brown then “freak[ed] out” on the patrons in the parking lot, and one of them punched Brown, “drop[ing] him” to the ground. (Id. at 115-16, ECF #26-2 at Pg. ID 503.)

         Miller then became mixed up in the ongoing fracas. One of the customers from the bar hit Miller's head with the door of a truck, drawing blood. (See Id. at 117, ECF #26-2 at Pg. ID 504.) Then Miller lost control. He yelled that he was “going to kill” the patrons from the bar and that his dad “was going to bury [them] six feet under.” (Id. at 117-18, ECF #26-2 at Pg. ID 504.)

         Miller then re-entered the bar and demanded that the bartender call the police. (See Id. at 124, ECF #26-2 at Pg. ID 505.) He says that he was scared of the other patrons in the bar and that he chose to protect himself by breaking two bar glasses and throwing the glasses at them. (See Id. at 131, ECF #26-2 at Pg. ID 507.) One of the patrons eventually tackled Miller, but Miller forced his way off the ground and exited the bar. (See Id. at 132-35, ECF #26-2 at Pg. ID 507-08.) After leaving the bar this time, Miller walked into a nearby wooded area. (See Id. at 143, ECF #26-2 at Pg. ID 510.)

         At or around the time Miller fled into the woods, Jackson County Sheriff Deputies Kelly Rybicki (“Rybicki”) and Jason Breining (“Breining”) arrived on the scene. Upon their arrival, Rybicki entered the bar to speak with patrons while Breining remained outside with Brown. Rybicki spoke with four witnesses inside the bar, including the Lost Shoe Tavern's bartender, Melissa Hanson, and the two individuals at whom Miller allegedly threw the bar glasses, Melissa Tackett and Travis Tackett. (See Rybicki Dep. at 10, ECF #26-6 at Pg. ID 620.) During this initial round of interviews, Rybicki came to believe that “a knife” may have been “involved” in the assault. (Id. at 19, ECF #26-6 at Pg. ID 622.) Rybicki then exited the bar and told Breining that Miller may have used a knife during the altercation at the tavern. (See Rybicki's dash-cam video recording, ECF #17.)

         Rybicki then went back into the bar and spoke again with the witnesses. During this second conversation, the witnesses clarified that a patron had retrieved the knife from Miller's car, that the knife was inside the bar for safe-keeping, and that the assault inside the bar involved only bar glasses. (See Rybicki Dep. at 20, ECF #26-6 at Pg. ID 620; see also dash-cam video, ECF #17.)

         Rybicki next exited the bar and spoke again with Breining. (See ECF #17.) She told him that the individuals inside the bar had offered a “revamp[ed]” version of events. (Id.) She explained to Breining that under the revised account, Miller used bar glasses during the assault. (See id.)

         Based on Miller's use of the bar glasses, Breining concluded that Miller had committed a “felonious assault.” (Breining Dep. at 14, 19, ECF #26-5 at Pg. ID 603-04.) Breining thereafter summoned a canine unit to help locate Miller. (See Id. at 19, ECF #26-5 at Pg. ID 604.) Defendant Christopher Jacobson (“Jacobson”), a canine officer with the Blackman Township Police Department, then arrived with his tracking dog named Zando. According to Jacobson, Breining told him (Jacobson) that Miller had been involved in an altercation involving a knife. (See Jacobson Dep. at 9, 36, 4146, ECF #26-4 at Pg. ID 578, 584, 586-87.)[1] After hearing Breining's report, Jacobson was concerned that Miller may have been armed and may have posed a threat to those tracking him. (See Id. at 19, ECF #26-4 at Pg. ID 580.)

         Jacobson and Zando then entered the wooded area to begin tracking Miller. During the entirety of the track, Jacobson had exclusive control over Zando. (See Id. at 13-15, ECF #26-4 at Pg. ID 579.) Breining did not control or direct Zando in any way. (See id.; see also Breining Dep. at 16-17, ECF #26-5 at Pg. ID 603-04.) Instead, Breining trailed about 20 to 30 yards behind Jacobson. (See Breining Dep. at 16-17, ECF #26-5 at Pg. ID 603-04.)

         During the track, Jacobson had Zando on a “30 foot” lead (i.e., a 30-foot leash), and they proceeded in what Jacobson called “stealth” mode - meaning that they did not announce their presence or give any advance warning or notice to Miller that they were approaching. (Jacobson Dep. at 14, ECF #26-4 at Pg. ID 579.) Jacobson explained that he operated in stealth mode because he was concerned that he would be vulnerable to “ambush” in the dark woods if he revealed his presence and location. (Id.)

         Zando eventually found Miller, knocked him down (see Miller Dep. at 157, ECF #26-2 at Pg. ID 514), and bit down onto Miller's left leg in order to control him. (See Jacobson Dep. at 17-18, ECF #26-4 at Pg. ID 580.) Jacobson did not witness the initial take-down because he was thirty feet behind Zando; Jacobson came upon Miller as Zando was biting down on him. (See Id. at 29-30, ECF #26-4 at Pg. ID 583.) Jacobson did not immediately order Zando to release Miller. Instead, Jacobson allowed Zando to hold the bite so that Breining - who was thirty yards behind Jacobson - could catch up to them. (See Id. at 19-20, ECF #26-4 at Pg. ID 580.)

         Jacobson explained that he permitted Zando to maintain the bite until Breining was “available” because Jacobson believed, based upon what Breining had told him, that Miller could have been armed and could have posed a danger. (Id.) Jacobson pulled Zando off of Miller just as Breining arrived on the scene; Breining did not see Zando biting Miller. (See Breining Dep. at 18, ECF #26-5 at Pg. ID 604.) After Zando disengaged, Breining arrested Miller and called an ambulance so that Miller could receive treatment for the dog bite. (See Id. at 18, 24-25, ECF #26-4 at Pg. ID 604-06.) Miller at first “refused” treatment, but eventually he was “transport[ed]” to the hospital. (Id. at 25-27, ECF #26-5 at Pg. ID 606.)

         Miller admits that he was “significantly intoxicated and [was] swearing” at the medical professionals at the hospital who attempted to treat his wound. (Miller Dep. at 73, ECF #26-2 at Pg. ID 493.) Miller's medical records from his visit to the hospital that evening indicate that:

• He was initially “belligerent and refusing all care.”
• He had to be placed in two-point restraints.
• A neurological examination revealed that he exhibited “aggressive behavior with violent tendency consistent with alcohol induced rage syndrome.”
• He stated that he “refuse[d] to take any antibiotics” because he hoped that “his wound [would] get[] infected so [that] he [could] call his lawyer.”
• He was diagnosed with “acute (sudden) alcohol intoxication.”

(Medical Records, ECF #26-3.)

         After leaving the hospital, Miller was charged with (1) felonious assault and (2) resisting and obstructing an officer. The charges were eventually dismissed.


         On August 21, 2015, Miller filed his Complaint in this action. (See ECF #1.) Miller asserted claims against Rybicki, Breining, the Jackson County Sheriffs Office, Jackson County, Jacobson, the Charter Township of Blackman (“Blackman Township”), and the Blackman Township Police Department for excessive force, unlawful arrest, malicious ...

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