936 F.2d 573 (6th Cir. 1991), 90-1371, Hoffman v. Ruesch

Docket Nº:90-1371.
Citation:936 F.2d 573
Party Name:Charles F. HOFFMAN, Plaintiff-Appellant, v. Kent RUESCH, individually, and in his official capacity as Deputy Sheriff of the Eaton County Sheriff's Office, and the Eaton County Sheriff's Office, a department of the Eaton County Government, Defendants-Appellees.
Case Date:June 24, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 573

936 F.2d 573 (6th Cir. 1991)

Charles F. HOFFMAN, Plaintiff-Appellant,

v.

Kent RUESCH, individually, and in his official capacity as Deputy Sheriff of the Eaton County Sheriff's Office, and the Eaton County Sheriff's Office, a department of the Eaton County Government, Defendants-Appellees.

No. 90-1371.

United States Court of Appeals, Sixth Circuit

June 24, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Western District of Michigan, No. 89-00681; Ensler, J.

W.D.Mich.

AFFIRMED.

Before KEITH and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.

PER CURIAM.

Charles Hoffman, the plaintiff in this case, sued the Eaton County Sheriff's Department and Kent Ruesch, a Deputy Sheriff. The claim arises out of an October 1984 incident in which Deputy Ruesch shot the plaintiff, leaving him paralyzed. The district court entered summary judgment in favor of the defendants, and we now affirm.

Ruesch's version of the events in question is set out in an affidavit prepared during the course of this litigation. The only evidence presented by Hoffman to counter the Ruesch affidavit is a portion of a preliminary examination transcript from a prior criminal proceeding arising out of these same events. This prior criminal proceeding involved a full trial as well as the preliminary hearing and resulted in the conviction of the plaintiff, Charles Hoffman. Though Hoffman makes a number of unsubstantiated allegations, these allegations are totally unsupported by any evidence--either by an affidavit of his own or by evidence gleaned from the criminal trial. Because of the plaintiff's unwillingness or inability to present any countering affidavit, the defendants' version of the facts is the one that we must go with in evaluating the plaintiff's claim.

In October 1984, the police received a tip from the plaintiff's son, Mike Hoffman, that his father, who had just been released from prison, planned to seek revenge against the Eaton County Sheriff, the man responsible for putting him behind bars. Mike also indicated that his father planned a robbery of some sort. He said that his father had procured a gun and a mask for use in the robbery. On Saturday October 27, 1984, the Sheriff's department received another tip from Mike Hoffman: that his father planned a robbery that night. Mike Hoffman indicated that his father had practiced shooting the handgun on that day in preparation for the robbery. Finally, Mike claimed that his father had held the gun up to his (Mike's) head, saying that he (Mike) had better not inform anyone of his (the plaintiff's) intent to commit a robbery.

As a result of this tip, Deputy Ruesch proceeded to Carl's Supermarket in Olivet, the planned site of the robbery. Deputy Ruesch parked his car so that he could see the store. He observed Charles Hoffman, the plaintiff, standing in front of the store in the area of some vending machines, "killing time." Hoffman went to his car, lingered for one or two minutes, and then walked "briskly" into the store, pulling something over his face as he entered. A couple of minutes later, Hoffman left the store carrying a sack under his right arm and with his hand in his pocket. At this point, Ruesch decided to arrest the plaintiff.

Deputy Ruesch followed Hoffman as Hoffman left the parking lot in his car. Ruesch did not immediately attempt to stop him. He did not believe that stopping a potentially armed and dangerous individual in the highly populated area would be prudent at that time. The plaintiff, of course, has a more ominous explanation for Ruesch's delaying his arrest until reaching a more deserted location. Once they had reached an area that Ruesch considered "safe" to make the arrest, Ruesch and another police officer tried to stop Hoffman by turning on their police lights. After a series of "false stops," Hoffman finally pulled to a stop. Ruesch left his car and ordered Hoffman to surrender. Hoffman did not do so, but instead fled in his car. At this point, Ruesch shot at Hoffman as Hoffman was fleeing. Hoffman emphasizes that, in the preliminary examination, Ruesch admitted that he aimed the shot at Hoffman's head. 1 Ruesch then reentered his car, and continued the chase. After a short chase, Hoffman's vehicle left the road near a downed power line.

Hoffman has alleged that events were somewhat different. Hoffman claims that he was thrown clear of the car by the accident and knocked unconscious. According to Hoffman, Ruesch fired at him not as he was fleeing, but rather as he lay prone on the ground as the result of the accident. Hoffman has not provided an affidavit (or verified complaint) to support this version. In fact, Hoffman can't offer any direct evidence to support his allegation, since he admits that he has little recollection of the events immediately prior to being shot. The only evidence submitted by Hoffman to support his story is the brief excerpt from the preliminary examination transcript. Hoffman fails to explain how the transcript corroborates his claim, probably because it doesn't.

Mr. Hoffman has had prior occasion to appear before this court. He previously filed a different § 1983 claim against various prison officials, alleging, inter alia, that he was denied the right to dental treatment and the right to mail letters. That suit ws dismissed by the district court, and Hoffman appealed. A panel of this court affirmed the decision of the court below. Hoffman v. Kelsey, No. 88-1587 (6th Cir. February 10, 1989) (unpublished opinion).

After the plaintiff filed the instant action and prior to the completion of discovery, the defendants moved for summary judgment and for a stay of discovery pending resolution of the motion for summary judgment. The plaintiff filed a cross-motion for summary judgment. The motion was referred to a magistrate, who granted the motion to stay discovery but recommended against granting either motion for summary judgment. Judge Enslen decided against the magistrate's recommendation and granted the defendants' motion for summary judgment. The plaintiff presents two interrelated arguments in favor of reversing. First, he claims that the evidence before the court was sufficient to present a disputed material issue of fact for the jury. Additionally, he claims that, even if he was unable to come up with evidence sufficient to get to a jury, the failure resulted from the district court's decision to grant the motion for summary judgment prior to the completion of discovery. He claims that...

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