United States District Court, E.D. Michigan, Southern Division
Honorable Stephen J. Murphy
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
R. GRAND United States Magistrate Judge
a civil rights action brought pursuant to 42 U.S.C. §
1983, in which Plaintiff Terry Webb (“Webb”)
alleges that he was subjected to excessive force during the
course of his arrest on July 28, 2014. At the time of the
incident in question, Defendants Mohamad Bazzy, Andrew
Shepherd, Patrick Cecile, and Brian Williams (collectively
“Defendants”) were all Wayne State University
(“WSU”) police officers.
22, 2017, Defendants filed a motion for summary judgment.
(Doc. #23). Webb filed a response in opposition to this
motion on July 12, 2017 (Doc. #24), and Defendants filed a
reply on July 25, 2017 (Doc. #28). The Court held oral
argument on Defendants' motion on September 8,
reasons set forth below, IT IS RECOMMENDED
that Defendants' Motion for Summary Judgment
(Doc. #23) be GRANTED IN
PART and DENIED IN PART.
28, 2014, Webb attended a neighborhood picnic with friends on
Peterboro Street in Detroit, Michigan. (Doc. #23 at Ex. A,
pp. 25-26). At approximately 6:00 p.m., Webb and his friend,
Lopiccolo Miles (“Miles”), left the picnic in a
vehicle owned by Webb's girlfriend. (Id. at Ex.
A, pp. 21, 23). Miles was driving, and Webb was riding in the
front passenger seat. (Id. at Ex. A, pp. 21, 25).
point, while driving down Fourth Street in Detroit, Webb and
Miles noticed WSU police officer Mohamad Bazzy
(“Bazzy”). (Id. at Ex. A, p. 26).
According to Webb, Officer Bazzy was “harassing four
young girls who were innocently riding their bikes through
the neighborhood.” (Doc. #24 at 6). Miles continued
driving down Fourth Street, stopping at a stop sign at the
corner of Fourth and Grand River. (Doc. #23 at Ex. A, p. 27).
At that point, Miles apparently noticed that Officer Bazzy
was behind them. (Id.). Webb claims he then told
Miles to turn right onto Grand River and pull the car over.
(Id. at Ex. A, pp. 27-28).
is no dispute that after Miles pulled over, Webb immediately
got out of the vehicle and asked Officer Bazzy, “Why
are you harassing us, we haven't did nothing.”
(Id. at Ex. A, p. 29). Officer Bazzy responded by
telling Webb to “get back in the car.”
(Id.). Webb admits that he disregarded Officer
Bazzy's command and proceeded to sit on the trunk of the
(Id.). At that point, Officer Bazzy drew his gun and
called for backup. (Id. at Ex. A, pp. 30, 63; Ex. B,
p. 1). Webb then reached his hand into his pocket - he claims
to take out his cell phone to record the encounter - but
Officer Bazzy told him to “put it up.”
(Id. at Ex. A, p. 30). Officer Bazzy then
re-holstered his gun and attempted to detain Webb, but he
claims that Webb “resisted detainment and arrest by
pushing [and] pulling away” from him. (Doc. #23 at 11).
point, Officer Rose arrived at the scene and “dove
on” Webb, in an attempt to assist Officer Bazzy in
detaining Webb. (Id. at Ex. A, p. 30). Webb
testified at his deposition that, when Officer Rose dove on
him, he fell on his arms and they were trapped underneath him
as a result. (Id. at Ex. A, p. 33). During the
course of the scuffle, Officers Bazzy and Rose both tried to
pull Webb's arms out from under him. (Id.). At
some point, the remaining defendants - Officers Shepherd,
Cecile, and Williams - arrived on the scene and tried to
assist in restraining Webb. (Id. at Ex. B, pp. 1-2).
Defendant Bazzy then delivered a knee strike to Webb's
right ribs and struck Webb in the ribs with a closed fist,
which Webb alleges caused him to defecate on himself.
(Id. at Ex. A, pp. 32, 35; Ex. B, p. 1).
Subsequently, Webb was pepper sprayed, and his hands were
finally placed behind his back. (Id. at Ex. A, pp.
was placed in the back of Officer Shepherd's police
vehicle, while the car he had been riding in was searched,
and a bag of marijuana was found. (Id. at Ex. A, pp.
50-51; Ex. B, p. 2). Officer Shepherd then drove Webb to the
WSU Police Department Headquarters for processing, where he
was able to clean up and discard his soiled underwear.
(Id. at Ex. A, p. 36). While at headquarters, Webb
complained of rib pain, so he was transported to Detroit
Receiving Hospital, where x-rays showed no broken or
fractured ribs and he was discharged. (Id. at Ex. A,
pp. 36-37; Doc. #24 at Ex. D, p. 4). Webb was then charged
with two counts of assaulting, resisting, and obstructing a
police officer and one count of possession of marijuana.
(Id. at Ex. J, p. 5). Subsequently, Webb pled guilty
to assaulting, resisting, and obstructing a police officer.
26, 2016, Webb filed the instant lawsuit, alleging that
Defendants used excessive force during the course of his
arrest, in violation of the Fourth Amendment. (Doc. #1).
Defendants now move for summary judgment, arguing that
Webb's claim is barred by qualified immunity. (Doc. #23).
Standard of Review
Rule of Civil Procedure 56 provides: “The Court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see also Pittman v. Cuyahoga County Dep't of
Children & Family Servs., 640 F.3d 716, 723 (6th
Cir. 2011). A fact is material if it might affect the outcome
of the case under governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In determining
whether a genuine issue of material fact exists, the court
assumes the truth of the non-moving party's evidence and
construes all reasonable inferences from that evidence in the
light most favorable to the non-moving party. See
Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.
case, Defendants assert that they are entitled to qualified
immunity from Webb's § 1983 excessive force claim.
(Doc. #23 at 15-24). The doctrine of qualified immunity
insulates state actors from liability in close-call
situations. See Saucier v. Katz, 533 U.S. 194, 206
(2001) (explaining that the defense is intended to protect
state actors who must operate along the “hazy
border” that divides acceptable from unreasonable
conduct). Once the qualified immunity defense is raised,
“the plaintiff must show that (1) the defendant
violated a constitutional right and (2) that right was
clearly established.” McDonald v. Flake, 814
F.3d 804, 812 (6th Cir. 2016). A plaintiff must satisfy both
of these prongs, but the Court may take up the questions in
either order. See Pearson v. Callahan, 555 U.S. 223,