540 F.3d 449 (6th Cir. 2008), 07-1756, Slusher v. Carson

Docket Nº:07-1756.
Citation:540 F.3d 449
Party Name:Linda SLUSHER, Plaintiff-Appellant, v. C. CARSON and T. Terry, in their individual and official capacities, and Shiawassee County, Defendants-Appellees.
Case Date:September 02, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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540 F.3d 449 (6th Cir. 2008)

Linda SLUSHER, Plaintiff-Appellant,

v.

C. CARSON and T. Terry, in their individual and official capacities, and Shiawassee County, Defendants-Appellees.

No. 07-1756.

United States Court of Appeals, Sixth Circuit.

September 2, 2008

Argued: June 10, 2008.

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[Copyrighted Material Omitted]

Page 451

ARGUED:

Shawn C. Cabot, Christopher Trainor & Associates, White Lake, Michigan, for Appellant.

Jason David Kolkema, Johnson, Rosati, LaBarge, Aseltyne & Field, P.C., Lansing, Michigan, for Appellees.

ON BRIEF:

Christopher J. Trainor, Christopher Trainor & Associates, White Lake, Michigan, for Appellant.

Jason David Kolkema, Johnson, Rosati, LaBarge, Aseltyne & Field, P.C., Lansing, Michigan, for Appellees.

Before: BOGGS, Chief Judge; RYAN and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which BOGGS, C.J., joined. RYAN, J. (p. 458), delivered a separate concurring opinion.

OPINION

COLE, Circuit Judge.

This action arises from an incident that occurred on Plaintiff-Appellant Linda Slusher's (“Slusher" ) property on May 13, 2004. Slusher argues that Defendants-Appellees Michigan Deputies Cory Carson and Thomas Terry (collectively, along with Shiawassee County, “Defendants" ) seized her in violation of her Fourth Amendment rights during the course of the officers' visit to her property to aid in a neighbor's reclamation of property pursuant to a court order. The United States District Court for the Eastern District of Michigan granted Defendants' motion for summary judgment on all of Slusher's claims. For the reasons below, we AFFIRM.

I. BACKGROUND

A. Alleged Facts

The facts, in the light most favorable to Slusher, are as follows. On May 13, 2004, Defendants Carson and Terry were dispatched to Dr. Leroy Waite's property in order to assist Waite in reclaiming certain personal property pursuant to a divorce judgment issued by the Shiawassee County Circuit Court. The divorce judgment included a finding that Waite's wife had hidden two tractors and some airplane parts that belonged to him, potentially on the property of Linda Slusher and her husband Benjamin. The court also issued a search order that entitled Waite to enter the Slushers' property, with the aid of peace officers-in this case, Carson and Terry-in order to reclaim the two tractors. After arriving at Waite's home, Carson and Terry reviewed the contents of the court order and proceeded, with Waite, to the Slushers' property. Upon their arrival, the deputies and Waite were met by Benjamin. Benjamin reviewed the court order and then left to retrieve the two tractors from barns on the property; Carson followed behind. While Benjamin was retrieving the tractors, Linda Slusher exited the home and Benjamin called out to the officers and asked that they allow Linda to read the court order as well.

While Slusher was reviewing the order, Terry and Waite were standing nearby. At some point, Waite asked Terry to accompany him to one of the barns so that he could look for the airplane parts. Overhearing this, Slusher stated that the order did not allow Waite to search the barns. This led to an argument between Slusher and Waite. A few minutes later, Carson approached Slusher, Waite, and Terry and asked Slusher to hand over the court order. Slusher stated that she had not finished reading the order. Carson replied that she had been given sufficient time to

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read the order and directed that she return it to him. As Carson reached for the order, Slusher retracted her hand holding the order. Slusher then asked if she could make a copy of the order inside her house; Carson stated that she could not. At this point, Carson made another attempt to retrieve the order, and in the process pulled her arm down with one hand and used his other hand to grab her right hand, which was holding the order. Slusher asserts that Carson “pressed his thumb into [her] hand, [her] palm, squeezed the back and twisted [her] fingers back and around," and that Slusher yelled out that Carson was gripping her “bad hand." Slusher claims that due to a preexisting condition called Multiple Enchodromatosis, also known as Ollier's Disease, Carson's actions caused her to lose the use of her right hand for several months, impaired the range of motion in her hand, and caused her to lose grip strength and fine motor skills.

A short while later, after Benjamin had driven the tractors onto Waite's property, Waite and the officers left the Slushers' property. Slusher applied ice to her right hand, took some pain medication, and had Benjamin bandage the hand. She then called 911 to report that she had been assaulted by an officer and wanted to file a report. Deputies Carson and Terry returned to the Slushers' property in response to this call. On viewing her bandaged hand, Slusher claims that the officers began laughing and that Terry told Slusher that they could arrest her for assaulting them. After the officers left, Slusher went to the emergency room for treatment of her injured hand.

The next day, Slusher attempted to file a complaint against Carson and Terry with the Shiawassee County Sheriff's department. Slusher says that she met with Sheriff Keith Kewish on May 20 to describe the incident and her injuries. She says that Kewish laughed at her, refused to take pictures of her injuries, threatened her with arrest, and would not allow her to make a report. Lieutenant David Kirk, the department's head of Internal Affairs, subsequently contacted Slusher by phone on May 24 and asked her to meet with him to make a statement regarding the incident. Slusher claims to have informed Kirk that, because she was concerned that criminal charges might be filed against her, she would only meet with Kirk in the presence of an attorney. Slusher claims that Kirk refused to meet with her if she was accompanied by an attorney, and that as a result she and Kirk never met. Kirk subsequently prepared an investigatory report in which he concluded that the deputies “acted well within the use of force continuum guidelines for [the Sheriff's] Department."

B. Procedural History

On February 17, 2006, Slusher filed the instant complaint against the Defendants. In her complaint, Slusher alleges against all Defendants: (1) a Fourth Amendment violation under under 42 U.S.C. § 1983 due to excessive force; (2) assault and battery in violation of Michigan law; and (3) gross negligence in violation of Michigan law. She additionally alleges a Fourth Amendment violation pursuant to § 1983 against Shiawassee County based on her allegations that the county failed to supervise and train officers regarding the use of force, failed to investigate complaints and discipline officers, and had an “unwritten policy or custom of discouraging citizen's complaints, or threatening to arrest citizen's [sic] who state their intention to file a complaint."

On March 14, 2007, Slusher filed a “Motion to Amend/Clarify Complaint," in which she sought to add a claim against

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Deputies Carson and Terry for conducting an illegal search of her property. On May 23, 2007, the district court denied Slusher's motion to amend her complaint, concluding both that the claim was futile because she failed to allege any clearly established constitutional violation and that granting of the motion would be unduly prejudicial given the timing of the motion. The district court also granted Defendants' motion for summary judgment. From this Judgment, Slusher appeals.

II. STANDARD OF REVIEW

We review a district court's grant of a motion...

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