Zucker v. City of Farmington Hills, 031416 FED6, 15-1202

Docket Nº:15-1202
Opinion Judge:BOGGS, Circuit Judge.
Party Name:ROBERT ZUCKER, Plaintiff-Appellant, v. CITY OF FARMINGTON HILLS, et al., Defendants-Appellees.
Judge Panel:BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.
Case Date:March 14, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ROBERT ZUCKER, Plaintiff-Appellant,

v.

CITY OF FARMINGTON HILLS, et al., Defendants-Appellees.

No. 15-1202

United States Court of Appeals, Sixth Circuit

March 14, 2016

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge. [*]

OPINION

BOGGS, Circuit Judge.

In 2009, officers of the Farmington Hills Police Department ("FHPD") approached Robert Zucker at his residence in an attempt to convince Zucker to accompany them to a nearby hospital for mental-health treatment. A physical confrontation ensued and officers forcibly detained Zucker, shocking him with a taser in the process. Zucker subsequently brought an action under 42 U.S.C. § 1983 in Michigan state court against the City of Farmington Hills and five members of the FHPD, alleging that FHPD officers had violated his constitutional rights by seizing and searching his person without probable cause and by using excessive force in doing so. The defendants removed the case to federal court and filed a motion for summary judgment, which the district court granted. For the reasons set forth below, we affirm the judgment of the district court.

I. Factual Background & Procedural History

A

On August 4, 2009, Zucker reported a home invasion to the FHPD. Officer Robert Tiderington responded to the call. Although he did not find signs of a forced entry into Zucker's apartment, Tiderington observed that the apartment was in "disarray." Tiderington's conversation with Zucker led Tiderington to believe that Zucker might suffer from a mental illness. After leaving Zucker's apartment, Tiderington went to the complex's management office to speak with the apartment-complex staff, whom Tiderington asked to locate Zucker's family "to see if they could check on [Zucker]." An employee of the apartment complex contacted Zucker's brother, who in turn contacted Zucker's daughter. Ms. Zucker then telephoned her father, who she knew suffered from bipolar disorder. Ms. Zucker grew increasingly concerned after she spoke with Zucker, who told her "about microorganisms self-cleaning and composting in . . . the bathroom, " and decided to travel to Michigan to check on his health.

Just over a week later, occupants of apartments near Zucker's began to complain about a water leak and an unpleasant odor that was emanating from Zucker's apartment. Upon investigating, David Cole, an employee of the apartment complex, found that Zucker's apartment was "in total disarray and filthy beyond what I've seen in a lot of units." The sinks held food and garbage, there was little room to walk, and the toilet contained boxes, plastics, and other materials.

After maintenance staff fixed the leak and left, Ms. Zucker-who had arrived from out of state to check on her father-entered the apartment. Zucker's daughter observed that a toilet in the apartment was inoperable and "jammed with trash" and that the apartment was in disarray. Zucker, who alleges that maintenance staff pushed him against a wall, was upset about Cole's entry into his apartment, told his daughter that he had a "right to defend his family and his property, " and showed her a handgun that he had acquired. As Zucker later recounted, "I'd had a long history with the apartment complex of them doing things prejudicial to my well-being" and "told her that in case anything happened that there's a gun for our protection."

Upon seeing the weapon, Zucker's daughter promptly left the apartment and warned Cole, who was returning to help clean the apartment, not to go inside because Zucker had a gun. Cole and Ms. Zucker walked to the apartment clubhouse and called the FHPD dispatcher. Cole recounted to the dispatcher that Ms. Zucker had gone to her father's apartment to inform him that maintenance would have to enter the apartment again, after which she reemerged from the apartment and "told [Cole that Zucker's] gun is out." Cole also told the dispatcher that Zucker "[is] totally unstable."

Cole then handed the phone to Ms. Zucker, who identified herself and told the dispatcher that "I can't have [Zucker] know that I was on the phone with you guys . . . [b]ecause my life is on the line." She informed the dispatcher that Zucker was "in a manic state" with "delusional symptomology." Ms. Zucker went on to say that "something triggered something [in Zucker] about six weeks ago. Now, years ago he used to say he had [a] gun. I've never seen in my life a gun . . . up until this moment so I'm kinda scared right now." When the dispatcher asked whether Ms. Zucker could safely retrieve the gun from her father's apartment, she replied that she was "afraid to go back in the apartment" and that she "went running out the door." Although Ms. Zucker stated that her father had not threatened her with the gun, she cautioned that "he decides I'm the enemy, and I'm sending people to-he already threatened me before I came to . . . Michigan." Ms. Zucker asked what the police planned to do and stated that "I don't want anyone else getting injured. I don't want the cops getting injured." After Ms. Zucker opined that she could not "in good conscience put anyone else in harm, " the dispatcher assured her that law enforcement would come to speak with her first before taking any action.

FHPD Officers Tiderington and Allen and FHPD Sergeant Michaluk arrived at the clubhouse and spoke with Ms. Zucker and Cole. After the conversation, Michaluk reported over the radio that Ms. Zucker was "just absolutely terrified of [her father]." The officers had learned from Ms. Zucker and Cole that Zucker was "living in filth" and that Ms. Zucker saw her father "carrying a gun within his apartment, " though he had not threatened her with it. Michaluk stated that he was "confident [that] we have enough to do a commitment on our own, " noting that Zucker could not care for himself, was "using a toilet as the trash bin that is so overflowin[g] it will not flush, . . . the whole apartment's in filth[, and] [h]e's got water standing in the kitchen floor, which is leaking into other apartments." Michaluk later radioed to another officer that Zucker "clearly has a gun" and that Ms. Zucker was "scared to death of [her father], but will not articulate why." After a fourth FHPD officer, Officer Tomasovich-Morton, arrived on the scene, the agents decided that Officer Tiderington, whom officers thought Zucker would remember from the August 4 encounter, would call Zucker on the phone in an attempt to persuade him to leave the apartment.

The precise details of what happened next are disputed by the parties. According to the defendants, Officer Tiderington told Zucker that Tiderington would come to Zucker's apartment and subsequently approached the second-floor apartment with Officer Allen. Tiderington met Zucker in the hallway in front of the apartment, explained that Zucker's daughter was concerned for Zucker, and asked Zucker to come with the officers to the hospital. Zucker then said something, began to move his hands toward his jacket pockets, and turned to reenter the apartment. Fearful that Zucker was trying to reach for the gun, Tiderington grabbed Zucker's arm to prevent him from leaving, and both men fell to the floor. While Zucker and Tiderington struggled on the floor, Officer Allen saw Zucker reach into his jacket for what looked to be a shoulder holster. Allen warned Zucker that if he did not remove his hand from the jacket, Allen would shock him with a taser. When Zucker did not comply, Allen shocked him once.

Zucker's own deposition testimony offers a different story. According to Zucker, Officer Tiderington called and arranged to meet him in fifteen minutes outside of the apartment. Zucker stepped out of his apartment to find that Tiderington was "bounding up the stairs." Without saying anything, Tiderington approached Zucker, locked arms with him, pulled him to the ground, and handcuffed him. Zucker was left "handcuffed lying with [his] back on the ground, " hands behind his back, "[c]ompletely passive and in shock." Tiderington then left Zucker bound and supine on the ground and entered the apartment, after which Officer Tomasovich-Morton arrived on the scene, wiped Zucker's mouth, stood up, and did a "knee drop on [his] chest." Subsequently, another officer, presumably Officer Allen, shocked Zucker continuously with a taser for approximately two minutes.

It is undisputed that after officers subdued Zucker, they searched his person and transported him to the hospital, where he was declared mentally unsound and in need of medical attention based in part on a petition for hospitalization signed by Officer Tiderington.

B

In 2011, Zucker brought an action against the City of Farmington Hills and its Chief of Police, Charles Nebus, among other defendants, in Michigan state court. The defendants removed the case to federal court after Zucker added federal claims. As amended, his complaint asserted four state-law claims and four federal claims against the City of Farmington Hills, Officers Allen, Tomasovich-Morton, and Tiderington, Sergeant Michaluk, and Chief Nebus.

Zucker brought his federal claims under 42 U.S.C. § 1983, alleging four counts: First, in what is labeled as "Count IV, " Zucker alleged that the individual defendants deprived him of "liberty or property without due process of law" and "[t]he right to be free from excessive force, and to be secure in his person" in violation of the Fourth and Fourteenth Amendments. Second, Zucker alleged that the City of Farmington Hills has adopted a pattern or practice of allowing unconstitutional actions and failed to supervise or train the individual officers responsible for Zucker's...

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