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Pellow v. Barnhill

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

July 20, 2017

JENNIFER PELLOW as Personal Representative of the Estate of NATHAN WESLEY PELLOW, Plaintiff,
v.
KEVIN BARNHILL, SHANE McKIBBEN, ROBERT ROY, JOHN ADAMS, and DALE VAN HORN, Jointly and Severally, Defendants.

          OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 31)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is an excessive force case brought pursuant to 42 U.S.C. § 1983. Plaintiff Jennifer Pellow, as Personal Representative of the Estate of Nathan Wesley Pellow, alleges that Warren Police Officer Shane McKibben, Defendant, used excessive force resulting in the death of Nathan Pellow while fellow Warren Police Officers, Kevin Barnhill, Robert Roy, John Adams, and Dale Van Horn, also De- fendants, stood by and looked on. Defendants have moved for summary judgment, and Plaintiff opposes. For the reasons outlined below, Defendants' motion for summary judgment with respect to Plaintiff's Fourteenth Amendment claim (Count II) is DENIED; Defendant McKibben's motion with respect to Plaintiff's Fourth Amendment claim (Count I) against him is DENIED; and Defendants Barnhill, Roy, Adams, and Van Horn's motion with respect to Plaintiff's Fourth Amendment claim (Count I) against them is DENIED WITHOUT PREJUDICE.

         II. Background

The lengthy factual background and procedural history of this case will be summarized below in separate subsections.

         a. Factual Background

         On August 30, 2013, Pellow crashed his vehicle into a trailer home located at 25509 Doncea Drive in Warren, Michigan. Dkt. 1, Pg. ID 4. Pellow was injured in the accident. Dkt. 1, Pg. ID 4. Defendant Barnhill, a Warren Police Department (“WPD”) officer, was dispatched to the scene. Dkt. 1, Pg. ID 4. Barnhill's squad car contained a “dashcam” video recorder. Dkt. 31-3. Upon arrival, Barn-hill exited his squad car and encountered Pellow. Dkt. 31-3 at 11:14:29-11:15:59. Pellow attempted to punch Barnhill and walked away. Dkt. 31-3 at 11:14:29-11:15:59. Barnhill then requested assistance from WPD Officer McKibben. Dkt. 1, Pg. ID 4.

         About one minute later, Defendant McKibben arrived in his patrol car. Dkt. 31-4 at 11:17:05. His patrol car was also equipped with a dashcam video recorder. Dkt. 31-4. As recorded on McKibben's dashcam video, Barnhill and McKibben repeatedly told Pellow to get down on the ground, but Pellow refused to comply and fled. Dkt. 31-4 at 11:17:05-11:20:24. Barnhill and McKibben then chased Pellow. Dkt. 31-4 at 11:17:05-11:20:24.

         As these events unfolded, five Warren Fire Department firefighters, some driving a fire truck and others driving an ambulance, arrived to help secure Pellow. Dkt. 31-6, Pg. ID 189-90, 194; Dkt. 31-7, Pg. ID 200-02; Dkt. 31-8, Pg. ID 210-11; Dkt. 31-9, Pg. ID 219-20; Dkt. 31-10, Pg. ID 227-28; Dkt. 31-4 at 11:20:30. Pellow dodged officers and firefighters alike before darting up a trailer-home's steps in an apparent attempt to enter the trailer. Dkt. 31-6, Pg. ID 189. During the scramble, Pellow punched Firefighter Brian Jacobs in the face. Dkt. 31-6, Pg. ID 191-92; Dkt. 31-7, Pg. ID 202. Jacobs then tackled Pellow off the steps and onto the ground. Dkt. 31-6, Pg. ID 191-92; Dkt. 31-8, Pg. ID 210; Dkt. 31-4 at 11:20:30-11:24:17. Once Pellow was on the ground, McKibben and Barnhill, along with all five firefighters, attempted to handcuff Pel-low. Dkt. 31-6, Pg. ID 189-90, 194; Dkt. 31-7, Pg. ID 201-02, 204; Dkt. 31-8, Pg. ID 210-11; Dkt. 31-9, Pg. ID 220; Dkt. 31-10, Pg. ID 229; Dkt. 31-4 at 11:20:30-11:24:17.

         At some point during the melee, the WPD dispatched more officers to the scene. Dkt. 31-11, Pg. ID 238. Several officers responded including Sgt. Arthur Gill, [1] along with Defendants Roy, Adams, and Van Horn. They arrived on the scene as McKibben, Barnhill, and the five firefighters struggled to handcuff Pellow. Dkt. 31-2, Pg. ID 174-75; Dkt. 31-11, Pg. ID 238-39. A dashcam video recorder was mounted in Gill's patrol car. Dkt. 31-5. Eventually, McKibben, Barnhill, and the firefighters were able to handcuff Pel-low's wrists and shackle his ankles as he lay face-down on the ground. Dkt. 31-6, Pg. ID 189-90; Dkt. 31-7, Pg. ID 200-03; Dkt. 31-8, Pg. ID 210-11; Dkt. 31-9, Pg. ID 219-21; Dkt. 31-10, Pg. ID 227-29; Dkt. 31-11, Pg. ID 239.

         The parties present competing narratives of what happened after Pellow was handcuffed and under control. Plaintiff's narrative is based on Gill's testimony, while Defendants' narrative is based on the firefighters' testimony. As noted in more detail below, Defendants do not rely on their own testimony because during their depositions-with the exception of Adams, who appears not to have been deposed-they invoked their Fifth Amendment right against self-incrimination.

         Plaintiffs narrative relies on Gill's testimony. Gill states the following:

■ After Pellow was handcuffed and under control, the firefighters and all the officers other than McKibben left the area and returned to the ambulance and fire truck approximately 100 to 150 feet away.[2] Dkt. 3111, Pg. ID 239.
■ At this point, Pellow was fully restrained, alive, breathing, and “did not appear to be much of a threat.” Dkt. 31-11, Pg. ID 239, 250. Pellow was, however, red in the face. Dkt. 31-11, Pg. ID 239, 250.
■ Everyone but McKibben, including the firefighters and Defendants Barnhill, Roy, Adams, and Van Horn, began to walk away. Dkt. 31-11, Pg. ID 239.
■ Gill then turned his back from Pellow and McKibben for “just a couple seconds” and walked fifteen to twenty feet away from Pellow and McKibben. Dkt. 31-11, Pg. ID 247.
■ An unknown woman approached Gill. Dkt. 31-11, Pg. ID 247.
■ Before they could have any verbal interaction, Gill noticed the woman looking over his shoulder. Dkt. 3111, Pg. ID 239.
■ Gill turned to look over his shoulder and saw McKibben stand and “bounce” on Pellow's back for “only a second or two.” Dkt. 31-11, Pg. ID 239, 247, 250.
■ Gill immediately ordered McKibben to get off Pellow's back, McKibben promptly complied, and the command was recorded on Gill's body-microphone. ...

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