United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING OFFICER PLUMB'S MOTION
FOR SUMMARY JUDGMENT
V. PARKER, U.S. DISTRICT JUDGE.
filed this lawsuit on October 23, 2017, alleging that
Defendants used excessive force against him in violation of
federal and state law. Defendants are Flushing Township
Police Officer Louis Cook (“Officer Cook”) and
City of Flushing Police Officer Thomas Plumb (“Officer
Plumb”). Presently pending before the Court is Officer
Plumb's Motion for Summary Judgment pursuant to Federal
Rule of Civil Procedure 56. (ECF No. 27.) The motion has been
fully briefed. (ECF Nos. 29, 30.) Finding the facts and legal
arguments sufficiently presented in the parties'
submissions, the Court is dispensing with oral argument
pursuant to Eastern District of Michigan Local Rule 7.1(f).
For the reasons that follow, the Court is granting Officer
Summary Judgment Standard
judgment pursuant to Rule 56 is appropriate “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). The central inquiry
is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). After adequate time for discovery
and upon motion, Rule 56 mandates summary judgment against a
party who fails to establish the existence of an element
essential to that party's case and on which that party
bears the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
movant has the initial burden of showing “the absence
of a genuine issue of material fact.” Id. at
323. Once the movant meets this burden, the “nonmoving
party must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks and citation omitted).
To demonstrate a genuine issue, the nonmoving party must
present sufficient evidence upon which a jury could
reasonably find for that party; a “scintilla of
evidence” is insufficient. See Liberty Lobby,
477 U.S. at 252. The court generally must accept as true the
non-movant's evidence and draw “all justifiable
inferences” in the non-movant's favor. See
Liberty Lobby, 477 U.S. at 255.
Factual and Procedural Background
24, 2017, Plaintiff was at his home, which he rented in
Flushing Township, Michigan. In the late afternoon or early
evening, he was visited by his friends Cody Arwood and Brook
Rose, and their friends, Edward and Bryanna Owens. Before
they arrived and while they were at Plaintiff's house,
Plaintiff consumed three 28-ounce beers.
around nine o'clock in the evening, Plaintiff became
upset with Cody and Brook because he thought they were
injecting heroin while locked in his bathroom. An argument
ensued, and Cody and Brook left the home. While leaving, Cody
broke the glass window on the front screen door. (Def.'s
Mot. Ex. 1 at 29-30, ECF No. 27-2 at Pg ID 179-180.)
Plaintiff testified that Cody also broke Plaintiff's cell
phone and then returned and broke every window in his
house. (Id. at 29-30, 132, Pg ID 179-80,
Owens testified that Plaintiff was very upset and, after
trying to call Cody, threw his cell phone on the cement floor
of the front porch and broke it. (Def.'s Mot. Ex. 2 at
12, ECF No. 27-3 at Pg ID 224.) Bryanna used her cell phone
to call Plaintiff's mom, Teresa Christenson, who said she
would come over. (Id.) Bryanna also called 911 at
approximately 9:45 p.m. (Id. at 15, Pg ID 225;
Def.'s Mot. Ex. 4 at 1, ECF No. 27-5 at Pg ID 259.) The
911 operator's dispatch requesting police assistance at
Plaintiff's address described an intoxicated individual,
a gun, and windows being broken. (Def.'s Mot. Ex. 3 at
11, ECF No. 27-4 at Pg ID 250; Id. Ex. 4, ECF No.
27-5 at Pg ID 259.) Mrs. Christenson arrived at
Plaintiff's home while Bryanna was talking to the 911
operator. (Id. Ex. 4, ECF No. 27-5 at Pg ID 259.)
Defendants responded to the 911 call in separate patrol cars.
Defendants arrived at Plaintiff's home, Plaintiff was
still very upset, was yelling, and “hard to talk
to.” (Def.'s Mot. Ex. 1 at 37-38, 103, ECF No. 27-2
at Pg ID 181-82, 198.) Defendants approached Plaintiff in the
backyard, near a bonfire. Officer Cook told Plaintiff several
times to stop yelling and to sit down, but Plaintiff refused.
(Id. at 102, Pg ID 198; Id. Ex. 5 at 35,
38, ECF No. 27-6 at Pg ID 286, 287.) Mrs. Christenson
acknowledged during her deposition that Plaintiff was
“out of control” when the officers arrived,
“was ranting and raving, ” and “would not
calm down.” (Id. Ex. 6 at 35, ECF No. 27-7 at
Pg ID 286.) Officer Cook told Plaintiff that he needed to go
to the hospital to get checked out.(Id. Ex 5 at 28, ECF
No. 27-5 at Pg ID 269.) According to Defendants and Bryanna,
Plaintiff got very upset in response and spit or tried to
spit on his mother. (Id. at 30, Pg ID 270;
Id. Ex. 2 at 49, ECF No. 27-3 at Pg ID 234;
Id. Ex. 3 at 16, ECF No. 27-4 at Pg ID 251.) Officer
Cook then attempted to handcuff Plaintiff and told him that
[spitting on his mother] was not going to be tolerated and/or
that he needed to show more respect to his mom. (Id.
Ex. 5 at 31, ECF No. 27-6 at Pg ID 270; Id. Ex. 2 at
52, ECF No. 27-3 at 234; Id. Ex. 3 at 16, ECF No.
27-4 at Pg ID 251.)
and Bryanna testified that Plaintiff became aggressive and
resisted when Officer Cook attempted to handcuff him.
(Id. Ex. 2 at 52, ECF No. 27-3 at Pg ID 234; Ex. 3
at 16, ECF No. 27-4 at Pg ID 251; Ex. 5 at 31, ECF No. 27-6
at Pg ID 270.) Plaintiff, however, testified that he was
compliant while being handcuffed and did not resist.
(Id. Ex. 1 at 42-43, ECF No. 27-2 at Pg ID 183.)
After Plaintiff was handcuffed, Defendants began walking him
to the front of the house toward Officer Cook's patrol
car, which was parked in the driveway.
to Plaintiff, Officer Cook had his arm on Plaintiff's
left shoulder as they proceeded down the home's front
driveway and Officer Plumb was behind them. (Def.'s Mot.
Ex. 1 at 43, ECF No. 1 at Pg ID 183.) Plaintiff further
testified that Officer Plumb was not touching him in any way.
(Id. at 44, Pg ID 183.) Defendants testified that
only Officer Cook escorted Plaintiff to the front of the
house. (Id. Ex. 3 at 18-20, ECF No. 27-4 at Pg ID
252; Id. Ex. 5 at 32, ECF No. 27-6 at Pg ID 270.)
Officer Plumb explained that he was not immediately behind
Plaintiff and Officer Cook as they walked to the patrol car;
instead, he remained in the backyard with Mrs. Christenson.
(Id. Ex. 3 at 18-20, ECF No. 27-4 at Pg ID 252.)
claims that Officer Cook suddenly shoved him to the ground
from his left shoulder and then said, “This was for
disrespecting your mother.” (Id. Ex. 1 at 44,
ECF No. 27-2 at Pg ID 183.) According to Plaintiff, he was
then held to the ground so he could not “wiggle around
and get back up” for about a minute. (Id. at
47, Pg ID 184.) Plaintiff “assume[d]” both
officers were holding him down, but he could not see who was
on top of him. (Id.) He felt pressure on the back of
his head and in the middle of his spine, but did not know how
many hands were on him. (Id. at 47, 128, Pg ID 184,
204.) Plaintiff testified that he was not punched, kicked, or
struck. (Id. at 48, Pg ID 184.) When he fell,
Plaintiff hit the gravel driveway face first and sustained a
broken nose and a cut to his nose and chin. (Id. at
46, Pg ID 184.) The officers then helped Plaintiff off the
ground. (Id. at 48, Pg ID 184.) An ambulance arrived
shortly thereafter and transported Plaintiff to the hospital.
asked what happened as Plaintiff was being walked to the
patrol car, Bryanna testified that Plaintiff was becoming
agitated and yelling and was stumbling as he walked.
(Def.'s Mot. Ex. 2 at 55, 57, 63, ECF No. 27-3 at Pg ID
235-237.) Bryanna further testified that Plaintiff attempted
to spit on one of the officers. (Id. at 57, Pg ID
236.) Bryanna turned her attention away from Plaintiff and
Defendants, but then saw Plaintiff on the ground with Officer
Cook and possibly Officer Plumb holding him
down. (Id. at 57-58, Pg ID 236.) She
did not see how they ended up on the ...