Alexander v. Wade

• Docket Number: 2:21-cv-12369
• Decision Date: 09 May 2023
• Parties: ISAAC ALEXANDER, Plaintiff, v. DATTAHN JAMAL WADE, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

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ISAAC ALEXANDER, Plaintiff, v. DATTAHN JAMAL WADE, Defendant.

No. 2:21-cv-12369

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

May 9, 2023

Nancy G. Edmunds District Judge

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF'S CONSTITUTIONAL CLAIM (ECF No. 26) and ORDER STRIKING REPLY BRIEF (ECF No. 36) AS UNTIMELY

ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION: The Court should DENY Defendant's motion for partial summary judgment (ECF No. 26) and permit Plaintiff's constitutional claim to proceed.

II. REPORT

A. Background

This lawsuit stems from the alleged events of October 10, 2018 when Isaac Alexander alleges he got into a physical altercation with his fiancee, Starr Rivers, who was carrying a firearm. (ECF No. 1, PageID.2 ¶¶ 5-7.) According to Alexander, Rivers “reached for it to grab it,” but Alexander “grabbed it first to prevent her from harming him with it[.]” (Id., ¶ 7.) Alexander alleges that off duty Detroit Police Officer Wade “arrived on the scene, and instructed [Alexander] to drop the firearm,” Plaintiff “immediately threw the firearm away . . . [,]” but Officer Wade “still shot him in his right leg near his groin area[,]” which “destroyed his femur bone.” (Id., ¶ 8.) Alexander then underwent reconstructive surgery. (Id., ¶ 10.)^[1]

Alexander was charged with several crimes. See Case No. 18-008418-01-FH (Wayne County). His trial began on August 13, 2019. On August 21, 2019, a jury found Alexander guilty of felonious assault, obstructing a police officer, felon in possession of a firearm, domestic violence, and three counts of possession of a firearm during the commission of a felony, second offense. He was remanded, and, on September 10, 2019 was sentenced to prison.

Shortly thereafter, Alexander filed a claim of appeal. On August 12, 2021, the Michigan Court of Appeals issued a lengthy opinion, affirming Alexander's convictions. People v. Alexander, No. 350816 (Mich. App. 2021). On September 9, 2021, Alexander filed an application for leave to appeal, which the Michigan Supreme Court denied on January 31, 2022. People v. Alexander, No. 163518, 969 N.W.2d 32 (Mich. 2022).

At some point in 2022, Alexander filed a motion for relief from judgment. (ECF No. 30, PageID.253, 342-375.) He also appears to have written to the Wayne County Prosecutor's Office Conviction Integrity Unit. (Id., PageID.376-377.)

B. Instant Lawsuit

On October 2, 2021, while located at the Michigan Department of Corrections (MDOC) Lakeland Correctional Facility (LCF), Alexander initiated this lawsuit against Wade. Distinct from Plaintiff's state court convictions, the case before this court challenges Defendant Wade's use of deadly force on October 10, 2018.^[2]Plaintiff's causes of action include excessive force under the Fourth Amendment, assault and battery, and gross negligence under Mich. Comp. Laws § 691.1407(7). (ECF No. 1, PageID.3-4 ¶¶ 11-19.) Plaintiff seeks compensatory and punitive damages. (Id., PageID.4 ¶¶ 20, 1-4.)

Alexander is currently incarcerated at the MDOC's Cooper Street Correctional Facility (JCS). See www.michigan.gov/corrections, “Offender Search,” last visited Apr. 5, 2023.

C. Instant Motion

Judge Edmunds has referred this case to me for pretrial matters. (ECF No. 6.) Currently before the Court is Defendant Wade's October 5, 2022 motion for partial summary judgment as to Plaintiff's constitutional claim. (ECF No. 26.)^[3]

Plaintiff filed a timely response on October 25, 2022. (ECF No. 30.) “If filed, a reply brief supporting such a motion must be filed within 14 days after service of the response ....” E.D. Mich. LR 7.1(e)(2)(B). Defendant Wade filed his reply on November 15, 2022 (ECF No. 36), i.e., twenty-one (21) days after the response was filed, without explanation as to its lateness and without requesting an extension. Thus, the reply (ECF No. 36) is tardy, and, accordingly, it will be stricken from the record.

D. Standard

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment 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). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (internal citations omitted).

“The moving party has the initial burden of proving that no genuine issue of material fact exists ....” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56 (e)(2) (providing that if a party “fails to properly address another party's assertion of fact,” then the court may “consider the fact undisputed for the purposes of the motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must “make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). To survive summary judgment, one “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. See also Metro. Gov't of Nashville & Davidson Cnty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts .... [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.”) (internal quotation marks and citations omitted). Moreover, “the mere existence of a scintilla of evidence that supports the nonmoving party's claims is insufficient to defeat summary judgment.” Pack v. Damon Corp., 434 F.3d 810, 814 (6^th Cir. 2006) (internal quotations and citations omitted) .

Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when “a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case....” Stansberry, 651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

E. Discussion

1. Plaintiff's factual allegations concern the presence of a firearm & Wade's use of deadly force.

Plaintiff alleges that, on October 10, 2018, he and Ms. Rivers, were on Rohns Street in Detroit, Michigan around 7:00 p.m. (ECF No. 1, ¶ 5.) He alleges they “were sitting in [h]is car, when Starr Rivers found another woman's earring in his car and she became highly upset at him.” (Id., ¶ 6.) Then,

• Rivers got upset and threw some water at him and the Plaintiff got out of the car to calm her down and stop her from attracting attention from the neighbors[.] Starr grabbed him and he grabbed her and they tussled and end[ed] up falling down on the ground of the vacant lot near her home[.] [D]uring the tussle[,] her [f]irearm fell out of her holster and she reached for it to grab it, but . . . Plaintiff grabbed it first to prevent her from harming him with it, because she was upset.^[4]

• While the Plaintiff, Isaac Alexander, was holding her [f]irearm, the off-duty Detroit Police Officer, Dattahn Jamal Wade arrived on the scene, and instructed the Plaintiff to drop the firearm[.] The Plaintiff immediately threw the firearm away and the off-duty officer Dattahn Jamal Wade still shot him in his right leg near his groin area that destroyed his femur bone.

• The Plaintiff fell to the ground and stated: "Why did you shoot me[?] I [did not] [h]ave the gun[.]

(ECF No. 1, PageID.2 ¶¶ 7-9.) Plaintiff alleges that “Starr Rivers drove the Plaintiff to the [h]ospital to receive medical treatment,” but she had a car accident, so “the Detroit Police had to transport [Plaintiff] the rest of the way to the hospital[,]” where he underwent “emergency reconstructive surgery,” including insertion of “a steel rod in his right leg and pins to connect his leg to his hip, because the femur bone was destroyed.” (Id., PageID.2-3 ¶¶ 10, 15-16.)

2. Fourth Amendment, reasonableness of force, & Graham

Plaintiff's Fourth Amendment excessive force claim is based on Defendant's use of deadly force - in this case shooting Plaintiff - after Plaintiff “threw away the firearm[.]” (Id., ¶¶ 11-13.) This Court has previously stated:

In order to hold an officer liable for excessive force, the plaintiff must prove that the officer: (1) actively participated in the use of excessive force; (2) supervised the officer who used excessive force; or (3) owed the victim a duty of protection against the use of excessive force. Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997).

Whether force is excessive is judged under the Fourth Amendment reasonableness standard. Graham v. Connor, 490 U.S. 386, 395[] (1989). “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.”

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