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McIness v. City of Detroit

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

July 12, 2018

IZELL McINESS, et al, Plaintiffs,
CITY OF DETROIT, et al., Defendants.



         This 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.

         I. BACKGROUND

         Defendants 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.

         The 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).

         Plaintiffs 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 emotional distress.


         A 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)).

         III. ANALYSIS

         The 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.

         As an 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 summary judgment.

         Accordingly, 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 [Plaintiff]”).

         Defendants 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.

         Although 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 ...

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