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Sevy v. Barach

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

August 5, 2019

ANTHONY SEVY, Plaintiff,
v.
PHILIP BARACH and HAROLD MARSHALL, Defendants.

          Anthony P. Patti, Magistrate Judge

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [45]

          LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE

         Anthony Sevy went to court to pay a $10 parking ticket. He tried to pay with his debit card. The clerk told him that a $1.75 service fee applied to debit card transactions. Believing this to be an outrageous fee, Sevy refused to pay and left.

         To express his displeasure with the debit card fee, Sevy returned to the courthouse with $10 in rolled pennies. But the clerk would not accept Sevy's pennies. Sevy was again displeased. He began to argue with the clerk, which attracted the attention of Court Security Officers Philip Barach and Harold Marshall. Sevy was ultimately arrested after a struggle with Barach and Marshall in the court's vestibule. Moments later, another altercation took place in an elevator while Barach and Marshall escorted Sevy to a holding cell. Sevy eventually pleaded no contest to a charge of disturbing the peace in state court and paid a fine.

         In time, Sevy sued Barach and Marshall. He alleged that they arrested him unlawfully, used excessive force, and retaliated against him for protesting against the court's payment policies. Now, Barach and Marshall move for summary judgment on all of Sevy's claims. Some survive, some do not.

         I.

         At around 12:30 pm on February 13, 2017, Anthony Sevy appeared at the 44th District Court in Royal Oak, Michigan to pay a $10 parking ticket. (ECF No. 45-10, PageID.851, 862.) Sevy tried to pay the ticket with his debit card. (ECF No. 45-4, PageID.698.) But the clerk, Sylvia Mathis, told him that a $1.75 convenience fee would apply to the debit card transaction. (ECF No. 45-4, PageID.698-99.) Sevy “thought that was ridiculous, ” declined to pay, and decided to leave. (ECF No. 45-4, PageID.699.) But before he left, Sevy asked Mathis if the court would accept change. (ECF No. 45-4, PageID.700.) She said it could accept rolled coin. (ECF No. 45-10, PageID.862.) Sevy briefly stopped at home and then proceeded to his bank, where he withdrew $10 in rolled pennies. (ECF No. 45-4, PageID.701-2.)

         Sevy's return trip to the courthouse is the source of this suit. The return trip lasted about five minutes and resulted in Sevy's arrest. But neither Sevy nor the court security officers that arrested him agree on exactly what happened. What follows are the parties' versions, interposed with the scene depicted by the court's security cameras.

         The security camera captured Sevy's return to the court around 1:07 pm. (ECF No. 45-6.) Philip Barach and Harold Marshall, court security officers, noticed an anomaly when they x-rayed Sevy's bag. (ECF No. 45-2, PageID.520-21.) Barach searched Sevy's bag and discovered his rolled pennies but no contraband. (Id.) Barach recalls warning Sevy that the court would not accept payment in pennies, to which he remembers Sevy replying, “[t]hey'll fucking take ‘em because they wouldn't take my credit card.” (ECF No. 45-2, PageID.521.) Sevy also remembers discussing the pennies with Barach. (ECF No. 45-4, PageID.702.)

         Sevy proceeded to the counter at around 1:08. (ECF No. 45-4, PageID.702-3; ECF No. 45-6.) Mathis, who had told Sevy about the debit card fee, was still there. Sevy gave Mathis his parking ticket and tried to pay with his pennies, but Mathis refused to accept them. (ECF No. 45-4, PageID.703.) She explained that the pennies Sevy slid through the payment slot were not properly identifiable. (ECF No. 45-10, PageID.862.) Within a minute, Marshall joined Mathis behind the window that separated her from Sevy. (ECF No. 45-6.)

         Sevy continued to speak with Mathis. Marshall describes the conversation between Sevy and Mathis as “an argument” but notes that Sevy never did anything physically aggressive. (ECF No. 45-3, PageID.594.) And though Marshall recalls other employees being startled or concerned by the dispute between Sevy and Mathis, he admits “it doesn't appear” from security footage that two nearby employees were concerned. (ECF No. 45-3, PageID.595.)

         Marshall returned to the lobby from behind the counter between 1:09 and 1:10. (ECF No. 45-6.) He told Sevy that the court did not have to accept coin as payment. (ECF No. 45-3, PageID.596.) And at 1:09:40, surveillance footage shows both Sevy and Marshall pointing toward a sign explaining that, under Mich. Comp. Laws § 21.153, the court is not required to accept payment in coin unless the coins are pure gold or silver. (ECF No. 45-3, PageID.587; ECF No. 45-6.) For a moment, the trio argued about whether the court was required to accept coin, until Marshall directed Sevy to “get out.” (ECF No. 45-3, PageID.587.) Marshall describes Sevy as “standing his ground” but not “physically squaring off.” (ECF No. 45-3, PageID.588.)

         Barach approached the counter around 1:10 pm. (ECF No. 45-6.) He listened to Sevy's complaints and advised him to mail in the fine. (ECF No. 45-2, PageID.524-25.) Barach says Sevy told him, “[y]ou know what, [Mathis] can suck my dick, [Marshall] can suck my dick, and you can suck my dick.” (ECF No. 45-2, PageID.526.) Mathis, too, heard Sevy “yelling ‘suck' among other things in a very loud voice.” (ECF No. 45-10, PageID.862.) Eventually, Barach instructed Sevy “[t]hat's enough, pal. Time to go.” (ECF No. 45-2, PageID.525.)

         Sevy's recollection differs. Once Sevy realized that the clerk would not accept his change, he asked for his ticket back. (ECF No. 45-4, PageID.704.) He thinks it took Mathis between fifteen seconds and a few minutes to return the ticket. (ECF No. 45-4, PageID.704-5.) During that time, Sevy was “upset” and “going back and forth with the guard.” (ECF No. 45-4, PageID.705.) Sevy describes one of the guards as “very aggressive” and says the guard called him a “punk” or “punk bitch.” (Id.) And Sevy remembers exclaiming, “[t]his is ridiculous, I'm paying with legal tender, call the police.” (Id.)

         The court's security camera captured the physical interactions between Barach and Sevy at the counter. At 1:10:02, Barach reached in front of Sevy to grab a bag or other object. (ECF No. 45-3, PageID.597; ECF No. 45-6.) Barach gestured for Sevy to leave at 1:10:05. (ECF No. 45-3, PageID.598; ECF No. 45-6.) Less than ten seconds later, Sevy turned to leave. (ECF No. 45-6.)

         Barach and Sevy disagree about what took place next.

         In Barach's version, Sevy was never going to leave. Barach watched Sevy walk straight to the vestibule door. (ECF No. 45-2, PageID.539.) When Sevy reached it, he “froze” while “making abusive statements.” (ECF No. 45-2, PageID.538-539.) So Barach put his left arm “towards [Sevy's] spine” to “give him a little nudge” and “guide him out the door.” (ECF No. 45-2, PageID.539.) But Sevy “twisted around” and “knocked [Barach's] left hand down.” (ECF No. 45-2, PageID.540.) And then Sevy assumed a “defensive . . . combative stance.” (ECF No. 45-2, PageID.552.) Seeing Sevy's “aggressive stance, ” Barach “felt [Sevy] was not going to leave” and decided to arrest him for disorderly conduct. (ECF No. 45-2, PageID.542.) To perform the arrest, Barach “grabb[ed] for [Sevy's] jacket or his collar” to “throw him to the ground.” (ECF No. 45-2, PageID.543.) Barach “attempted to throw [Sevy] down, ” but Sevy “kept pulling away.” (ECF No. 45-2, PageID.548.) Once Sevy was on the ground, Barach and Marshall handcuffed him. (Id.)

         Sevy tells a different version. According to Sevy, he was leaving the courthouse when Barach grabbed his arm and neck. (ECF No. 45-4, PageID.709, 712.) Sevy “[i]nitially” resisted and “tried to get [his] grounds, ” but Barach “thr[ew him] to the ground.” (ECF No. 45-4, PageID.706, 710, 713.) While Sevy lay face down on the ground, Barach held the “[b]ack and side” of his neck and choked him. (ECF No. 45-4, PageID.714.) Sevy asked “[w]hy are you choking me?” (ECF No. 45-4, PageID.715.) Between five and ten seconds after Barach threw Sevy down, Marshall arrived. (ECF No. 45-4, PageID.713.) Marshall helped Barach hold Sevy down, and Barach handcuffed Sevy. (ECF No. 45-4, PageID.714-15.) Sevy soon lost consciousness. (ECF No. 45-4, PageID.715.) Within a minute or two, three or four Royal Oak police officers appeared in the vestibule. (ECF No. 45-4, PageID.716.) Eventually, more arrived. (ECF No. 45-4, PageID.718.) Royal Oak police officers picked Sevy up and took him to the elevator. (ECF No. 45-4, PageID.717-18.)

         The security footage largely squares with Sevy's version. The footage shows Sevy leaving the counter and walking across the lobby towards the exit, stopping briefly to pick up a piece of paper he dropped. (ECF No. 45-3, PageID.599; ECF No. 45-6.) He reached the vestibule door and started to exit. (ECF No. 45-6) At that moment, Barach pushed Sevy through the vestibule door, and Sevy spun around. (Id.) Barach then placed his left hand on Sevy's neck, pushed Sevy backwards towards the outer door, and tried to take him to the ground. (Id.) Marshall soon entered the vestibule. (Id.) With Marshall's help, Barach pushed Sevy down. (Id.) The officers then handcuffed Sevy. (Id.) The entire episode lasted less than a minute.

         Soon after handcuffing Sevy, Barach and Marshall had Sevy standing up and were taking him back inside the lobby from the vestibule. (Id.) Barach guided Sevy towards the elevator. (Id.) The three entered the elevator at 1:11:28. (Id.)

         Another altercation occurred inside the elevator. Like the prior encounter, the parties tell different stories; unlike the prior encounter, there is no video footage. According to Sevy, someone “threw [him] to the ground” in the elevator, and he hit his head on the side of the elevator in the process. (ECF No. 45-4, PageID.718.) However, Sevy does not know which officer was responsible. (Id.) Yet Barach remembers throwing Sevy to the ground. (ECF No. 45-2, PageID.530.) Barach says he did so because Sevy “leaned up back and slammed his head against the bridge of [Barach's] nose” for “no reason.” (ECF No. 45-2, PageID.530, 550.) However, a police officer who interviewed Barach right after the incident did not observe any injuries on Barach's face. (ECF No. 45-10, PageID.852.) For his part, Marshall was in the elevator as well, and remembers Sevy was “using his body as leverage” to resist the officers' attempts to move him. (ECF No. 45-3, PageID.613.) But Marshall did not see what caused Barach to “put [Sevy] on his butt” because his eyes were “focused on [Sevy's] feet” to prevent being kicked. (ECF No. 45-3, PageID.611-12.)

         Viewing the security camera footage from outside the elevator, others in the lobby realized there was a problem inside the elevator. At 1:11:33.50, three individuals in the lobby turned their heads towards the elevator. (ECF No. 45-6.) Two of them rushed towards it and opened the elevator door. (Id.) One entered at 1:11:39.26 while the other stayed in the lobby. (Id.) Seconds later, another court security officer and one uniformed police officer stepped onto the elevator. (Id.) And a few minutes later, additional police officers arrived in the lobby. (Id.)

         Soon after the elevator ride, Sevy's involvement with Barach and Marshall ceased. Sevy was placed in a holding cell, searched, and interviewed. (ECF No. 45-4, PageID.707.) After about an hour, Sevy was released. (ECF No. 45-4, PageID.707-8.) However, his legal troubles continued.

         A few weeks later, a 44th District Court judge issued a warrant for Sevy's arrest on charges of assaulting or obstructing a public officer, Mich. Comp. Laws § 750.479, and disturbing the peace, Mich. Comp. Laws § 750.170. (ECF No. 45-12, PageID.876-77.) The day after Sevy learned about the warrant, he turned himself in at the 44th District Court and was released on bond. (ECF No. 45-4, PageID.741.) Eventually, the prosecutor dismissed the charge of assaulting or obstructing a public officer. (ECF No. 45-13, PageID.879) But Sevy pleaded no contest to the charge of disturbing the peace and paid a fine. (ECF No. 45-13, PageID.881.)

         Aggrieved by his ordeal, Sevy sued Barach and Marshall under 42 U.S.C. § 1983. Now, Barach and Marshall move ...


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