United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 54)
AND (2) DENYING AS MOOT REMAINING PENDING
MOTIONS (DKTS. 55, 60, 61, 62)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' motion for
summary judgment (Dkt. 54). The issues have been fully
briefed, and the Court held a hearing on April 19, 2018. For
the reasons that follow, the Court finds that Defendants are
entitled to summary judgment on Plaintiffs' federal
claims and, therefore, dismisses those claims with prejudice.
Because the dismissal of these federal claims means that this
case no longer retains a federal character, the Court remands
Plaintiffs' state-law claims to the Wayne County Circuit
Court and denies those portions of Defendants' motion
challenging the state-law claims without prejudice.
are the City of Detroit and several officers with the Detroit
Police Department. On March 22, 2016, the officers executed a
search warrant at the Galaxy Herbal Medical Marijuana
Caregiver Center, a medical marijuana dispensary in Detroit.
At the dispensary, the officers encountered Plaintiffs Izell
McIness and Larry Duffey.
officers executed the search warrant, rammed open the door to
the establishment, ordered the occupants to the ground, and
detained McIness and Duffey. Sampson Police Report, Ex. G to
Def. Mot., at 1, PageID.897 (Dkt. 54-9). McIness claims that
he alerted the officers that he could not comply with their
order to get on his stomach because he had stitches from a
recent surgery. McIness Answers, Ex. 1 to Pl. Resp. to Mot.
for Sum. Judg., ¶ 8 (Dkt. 58-1). When he did not comply,
McIness claims that one of the officers struck him at least
twice with the butt of a weapon and handcuffed him, which
tore his stitches open. Id. Duffey, for his part,
claims that he was forced to the floor, handcuffed, and
thrown up against a wall. Duffey Answers, Ex. 2 to Pl. Resp.
to Mot. for Sum. Judg., ¶ 8 (Dkt. 58-2). Plaintiffs
claim that they both requested their handcuffs be loosened
because they were too tight, and that the officers refused to
render medical care. Counter-statement of Mat. Facts, ¶
6 (Dkt. 58).
brought this suit in the Wayne County Circuit Court, and
Defendants removed it to this Court. Plaintiffs have brought
claims under 42 U.S.C. § 1983 for: (i) excessive force
in violation of the Fourth Amendment; (ii) deliberate
indifference to need for medical treatment in violation of
the Fourteenth Amendment; (iii) conspiracy to violate
constitutional rights; and (iv) supervisory and municipal
liability, as well as state-law claims for (i) gross
negligence, intentional, willful, and wanton misconduct; (ii)
assault and battery; and (iii) intentional infliction of
STANDARD OF REVIEW
motion for summary judgment under Federal Rule of Civil
Procedure 56 shall be granted “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). A genuine dispute of material fact exists
when there are “disputes over facts that might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[F]acts must be viewed in the light most
favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The moving party may discharge its burden by showing
“that there is an absence of evidence to support the
nonmoving party's case.” Horton v. Potter,
369 F.3d 906, 909 (6th Cir. 2004) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
Court grants Defendants' motion for summary judgment on
two independent bases: McIness and Duffey fail to submit any
legally admissible evidence in support of their claims, and
even if their submissions were considered in proper legal
form, they fail to meet the summary judgment standard.
initial matter, McIness and Duffey have only submitted their
respective answers to interrogatories in opposing summary
judgment. See McIness Answers, Ex. 1 to Pl. Resp. to
Mot. for Sum. Judg.; Duffey Answers, Ex. 2 to Pl. Resp. to
Mot. for Sum. Judg. But neither set of answers is sworn under
oath before a notary public; nor were they signed as
declarations under the penalty of perjury, as permitted under
28 U.S.C. § 1746. See McIness Answers at 11-12,
PageID.1002-1003; Duffey Answers at 11-12, PageID.1014-1015.
“To be treated as evidence, testimonial statements 
must be set forth in an affidavit that is properly notarized
or in which statements are declared to be true under penalty
of perjury as 28 U.S.C. § 1746 allows.”
Gonzales v. Brevard, 531 F.Supp.2d 1019, 1022 (W.D.
Wis. 2008); accord Nissho-Iwai American Corp. v.
Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (explaining
that an affidavit is “incompetent to raise a fact issue
precluding summary judgment” if it is unsworn and does
not meet 28 U.S.C. § 1746's requirement that it be
made “under penalty of perjury” and verified as
“true and correct.”). Because Plaintiffs'
interrogatory responses are neither properly-sworn affidavits
nor unsworn statements compliant with 28 U.S.C. § 1746,
they cannot be used to raise issues of fact in the motion for
Plaintiffs have submitted no competent evidence to rebut the
motion for summary judgment, and thus there is no evidence in
the record that any kind of force was used, let alone
excessive force. Because Defendants can show that there is an
absence of evidence to support Plaintiffs' case, they are
entitled to summary judgment. See Horton, 369 F.3d
at 909; see also Scadden v. Werner, 677 Fed.Appx.
996, 1001 (6th Cir. 2017) (affirming grant of summary
judgment because “without any evidence, a jury would
necessarily lack a basis to return a verdict for
would be entitled to summary judgment regardless because,
even assuming Plaintiffs' interrogatory answers were
competent as evidence, they do not demonstrate a
jury-submissible case. Plaintiffs have submitted one set of
interrogatory answers for each respective Plaintiff.
According to the answers, McIness was forced to the ground
and struck at least twice with the butt of a weapon after he
informed police that he could not get on the ground due to
stitches from a recent surgery. McIness Answers ¶ 8. He
claimed that this tore open his stitches. Id.
McIness also answered that he was handcuffed excessively
tightly and thrown against a wall. Id. He claimed
that he suffered injuries in the form of his stitches being
torn open, which required at least one surgery. Id.
¶ 9. Duffey's answers indicated that during the
incident, Duffey was forced to the floor, handcuffed
excessively tightly, and thrown up against the wall. Duffey
Answers ¶¶ 8, 9. Duffey did not explain what
further injuries he sustained as a result of the incident,
except that a pre-existing head injury was aggravated and
that he was traumatized by witnessing the treatment of
McIness. Id. ¶¶ 4, 6, 8.
the injury claims are vague for both McIness and Duffey,
there is “no ‘de minimis injury
requirement for excessive force claims[, ]'”
Cline v. City of Mansfield, 745 F.Supp.2d 773, 820
(N.D. Ohio 2010), quoting Morrison v. Bd. of Trs.,
583 F.3d 394, 406 (6th Cir. 2009); rather, “[i]n
determining whether an officer has used excessive force in
violation of the Fourth Amendment, [courts] employ an
objective-reasonableness test, asking whether the
officer's actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Roell v.
Hamilton Cty., Ohio/Hamilton Cty. Brd. of Cty.
Comm'rs,870 F.3d 471, 480 (6th Cir. 2017) (internal
quotation marks omitted). Courts “judge the lawfulness
of the conduct from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of
hindsight.” Getz v. Swoap, 833 F.3d 646,
652-653 (6th Cir. 2016) (internal quotation marks omitted).
Three factors govern a reasonable force ...