United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE.
case arises out of the arrest of Plaintiff Marcia
O'Brien. Plaintiff Richard O'Brien is Marcia's
husband. Plaintiffs allege that the arresting officer,
Defendant Mark Reckling, violated their First and Fourth
Amendment rights and that the City of Mason is liable for
failure to properly train Reckling and other officers.
Defendants moved for summary judgment and asserted the
defense of qualified immunity. Oral argument was heard on
June 20, 2017. For the following reasons, the Court will
grant Defendants' motion.
August 29, 2015, at approximately 11:17 p.m., City of Mason
Police Officers Mark Reckling and Alex Thompson responded to
a call regarding trespassing at the Quality Dairy in Mason,
Michigan. A music festival was either ongoing or had recently
ended. Officer Joe Fairbotham was already in the parking lot
of the Quality Dairy and had made contact with Jaime
McKnight, an African American male, and several other
individuals. Thompson parked his vehicle about 25 feet away
from Fairbotham and McKnight and went to assist Fairbotham in
handling the group. Reckling stayed with the vehicle.
Plaintiffs walked by the Thompson-Fairbotham-McKnight group
shortly after Thompson and Reckling arrived. As they walked
by, Richard said, “I see you have got the only African
American person in town tonight.” (ECF No. 30-8 at
PageID.450.) The couple continued walking and stopped at the
corner of Maple and Parks street. Marcia then turned around
and started walking back towards the crowd. (ECF No. 30-2 at
PageID.345.) Richard stayed at the corner of Park and Maple.
(Id.) Marcia stopped near Thompson's police
cruiser (roughly 20 feet from the crowd), and Reckling
approached her almost immediately. (Id.) Reckling
told Marcia to leave. After she refused to leave, Reckling
told Richard that Marcia and Richard should go home.
(Id.) Reckling took Marcia by the arm in the
“escort position” and turned her around to get
her to walk away. (ECF No. 30-4 at PageID.388.) Marcia spun
free, telling Reckling that “he can't grab her like
that.” (ECF No. 30-2 at PageID.345.)
another verbal exchange, Reckling handcuffed and put Marcia
into the back of the police vehicle. Reckling wrote Marcia a
citation for resisting and obstructing a city official:
Sec. 42-2. Resistance and obstruction of city officials
No person shall willfully obstruct, resist or oppose the
performance of duties by someone the person knows or
reasonably should have known to be a city police or any
other authorized official of the city.
(b) As used in this section, "obstruct"
includes the use or threatened use of physical interference
or force or knowing failure to comply with a lawful command
(Mason Ord., Part 2, Ch. 22, Art. II, Sec. 22-34.) It is
undisputed that Richard stayed a distance away from
Marcia's confrontation with Reckling.
officers' accounts of the interaction differ from Marcia
and Richard's only in characterizing Marcia as having
been “loud and boisterous” when she was speaking
with Reckling. During discovery, Marcia made a F.R.Civ.P. 36
admission that she had been loud and boisterous. (ECF No.
23-11 at PageID.196.) Marcia testified in her deposition that
she was not yelling at Reckling and that she did not make a
commotion at the crime scene. (ECF No. 30-2 at PageID.346.)
However, Marcia's Rule 36 admission controls: “A
matter admitted under [Rule 36] is conclusively established
unless the court, on motion, permits the admission to be
withdrawn or amended.” Fed.R.Civ.P. 36(b).
“Further, such conclusive admissions ‘cannot be
overcome at the summary judgment stage by contradictory
affidavit testimony or other evidence in the
record.'” Goodson v. Brennan, No. 16-5023,
2017 WL 1857270, at *3 (6th Cir. May 8, 2017) (quoting
Williams v. Wells Fargo Bank, N.A., 560 F.
App'x. 233, 244 (5th Cir. 2014)).
later admitted responsibility for a civil infraction of noise
violation and paid a $130 fine. The cited ordinance is §
22.34, which provides:
The following acts, among others, are declared to be loud,
disturbing, injurious, and unnecessary noises in violation of
this article; but this enumeration shall not be deemed to be
(3) Yelling, shouting, etc. Yelling, shouting, hooting,
whistling or singing on the public streets, particularly
between the hours of 10:00 p.m. and 7:00 a.m. or at any time
or place so as to annoy or disturb the quiet, comfort or
repose of persons in any office, or in any dwelling, hotel or
other type of residence, or of any persons in the vicinity.
(Mason Ord., Part 2, Ch. 22, Art. II, Sec. ...