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Fazica v. Jordan

United States Court of Appeals, Sixth Circuit

June 10, 2019

Renee Fazica, Plaintiff-Appellee,
v.
Zachary Jordan, Josh Tucker, Carlos Cordova, and Mark Fletcher, Oakland County Sheriff's Deputies, Defendants-Appellants.

          Argued: January 17, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-13563-Sean F. Cox, District Judge.

         ARGUED:

          Brandon K. Buck, Peter L. Menna, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellants.

          Richard A. Moore, ROMANO LAW, PLLC, Pleasant Ridge, Michigan, for Appellee.

         ON BRIEF:

          Brandon K. Buck, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellants.

          Richard A. Moore, ROMANO LAW, PLLC, Pleasant Ridge, Michigan, for Appellee.

          Before: MERRITT, GUY, and MOORE, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

         Plaintiff Renee Fazica was arrested for drunk driving and taken to the Bloomfield County Police Department, and then to Oakland County Jail. Prior to her arrival at Oakland County, the jail was alerted that she was intoxicated, yelling, and spitting. A Cell Extraction Team of Oakland County Jail officers including Officers Fletcher, Cordova, Tucker, and Jordan met Fazica upon her arrival. They roughly removed her from the vehicle and immediately applied a spit hood over her head that nearly entirely obscured her vision. The Cell Extraction Team moved her into the jail, handcuffed and in a bent-over position. They handled her forcefully and threatened her with a taser. The entirely male team took Fazica to a room in the jail where she was made to lie on her stomach and was strip searched. Her pants were physically torn off her; one officer placed his hands on her genitals and another groped her breasts. Fazica was then made to walk to a cell wearing only her bra and the spit hood. The spit hood had obscured her vision for much of the incident, largely preventing her from attributing specific acts to specific officers.

         Fazica sued under 42 U.S.C. § 1983, alleging that Fletcher, Cordova, Tucker, and Jordan used excessive force against her in violation of her Fourth and Fourteenth Amendment rights. Defendants moved for summary judgment on qualified-immunity grounds, arguing only that Fazica cannot show each officer's personal involvement in the allegedly unconstitutional acts. The district court denied their motion. Because a reasonable jury could find, based on the record evidence, that each Defendant officer either committed or observed and failed to stop the allegedly unconstitutional acts, we AFFIRM the district court's denial of summary judgment.

         I. BACKGROUND

         On October 16, 2014, a heavily intoxicated Fazica was pulled over by Bloomfield Township police officers on suspicion of drunk driving. R. 16-3 (Fazica Dep. at 21-22) (Page ID #159-60). After a blood sample was collected at the hospital, Fazica was taken to the Bloomfield Township Police Department. Id. at 24, 28 (Page ID #162, 166). She was upset by her arrest and detention and vocally expressed her discontent. An officer at the Bloomfield police station informed her that if she did not lie down and go to sleep, she would be transferred to Oakland County Jail. Id. at 30 (Page ID #168). Oakland County Jail sometimes receives inmates from other jails for various reasons-it has more cells and its staff is trained to deal with unruly inmates. R. 16-7 (Fletcher Dep. at 11-12) (Page ID #257). A staff member from Bloomfield called Oakland to inform the jail that Fazica would be arriving at Oakland and that she was "intoxicated, yelling and spitting." R. 16-4 (Case Report) (Page ID #226).

         Fazica was driven by a Bloomfield Township officer to the Oakland County Jail. R. 16-3 (Fazica Dep. at 30-31) (Page ID #168-69). While she was still in this officer's vehicle, he told her that she "better be good over here because they won't put up with you." Id. Upon arriving at the Oakland County Jail, Fazica noticed that four male officers were standing waiting for the vehicle. Id. at 32 (Page ID #170). The Bloomfield Township officer exited the vehicle and joined the other four, who were laughing. Id. Fazica remained in the back seat, silent and facing forward. Id. Suddenly, one of the four Oakland County officers opened the passenger side door in the back and another opened the driver's side door. Id. The Oakland County officers put her on the ground, face down and on her stomach. Id. at 37 (Page ID #175). They placed a spit mask over her head and face. The mask was white and of a "soft," "thicker" material that went up to the "very top of the bridge of her nose, like sort of close to her eyebrow line" so that she "could see just a tiny, tiny bit out of the top of [her] mask." Id. at 38-39 (Page ID #176-77). The mask is designed such that the white opaque portion covers the wearer's mouth to protect officers from being spit on. The top portion is made of a black mesh that is designed to allow the person wearing it to see out. R. 16-7 (Fletcher Dep. at 16) (Page ID #258). However, "if it were not pulled all the way down" or "[i]f the liner is pulled up too high," it is possible that the person wearing the mask would not be able to see. R. 19-6 (Tucker Dep. at 18) (Page ID #426).

         One officer pulled Fazica's arms up and back behind her; Fazica believes that he did so to change her handcuffs out of those used by the Bloomfield Township police into new ones. R. 16-3 (Fazica Dep. at 33) (Page ID #171). She told the officers that "it was hurting me really bad because it was my bad arm." Id. at 37 (Page ID #175). She was told to shut up. Id. She heard the Bloomfield Township officer get back in his car to leave. Id.

         Fazica was then picked up and stood on her feet. The officers walked her up a stair and through a door into a hallway. Id. at 40 (Page ID #178). Once she was up the stair, the officers bent her over so that her face was toward the floor. Id. at 41-42 (Page ID #179-80). At that point, one officer put his hands on her neck. He held her neck with four fingers of each hand on the back of her neck and his thumbs in the front of her neck, with the thumbs a couple of inches away from each other. Id. at 44 (Page ID #182). Fazica cried and told the officers that they were hurting her and that she could not breathe, but the officer pushed his fingers harder on her neck. Id. One officer stood by her side and told her repeatedly: "follow my voice or I'll tase you." Id. at 42 (Page ID #180). Fazica maintains that she ...


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