Austin v. Redford Twp. Police Dep't

• Citation: 859 F.Supp.2d 883
• Decision Date: 30 September 2011
• Docket Number: Case No. 08–13236.
• Parties: Charles Fitzgerald AUSTIN, Plaintiff, v. REDFORD TOWNSHIP POLICE DEPARTMENT, Kevin G. Riley, Timothy L. Paull, and John M. Morgan, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

859 F.Supp.2d 883

Charles Fitzgerald AUSTIN, Plaintiff,

v.REDFORD TOWNSHIP POLICE DEPARTMENT, Kevin G. Riley, Timothy L. Paull, and John M. Morgan, Defendants.

Case No. 08–13236.

United States District Court,

E.D. Michigan,

Southern Division.

Sept. 30, 2011.

Thomas P. Bruetsch, Alicia B. Chandler, Michelle T. Thomas, Bodman, Detroit, MI, for Plaintiff.

Jeffrey R. Clark, Cummings, McClorey, Livonia, MI, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING DEFENDANTS' OBJECTIONS, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND CONTINUING ORDER OF REFERENCE FOR PRETRIAL PROCEEDINGS

DAVID M. LAWSON, District Judge.

This case is before the Court on the defendants' objections to a report filed by Magistrate Judge Paul J. Komives recommending that the defendants' motions for summary judgment be granted in part and denied in part. The plaintiff filed a pro se complaint in this case alleging that the defendants used excessive force and engaged in ethnic intimidation when they used a Taser multiple times when they arrested the plaintiff after he sped through a construction zone in Redford Township and refused to stop his car when the police tried to pull him over. Pro bono counsel was appointed for the plaintiff, and the Court entered an order referring the case to Judge Komives to conduct all pretrial matters, after which the defendants filed their motion. Judge Komives filed his report on July 18, 2011, 2011 WL 4583792. The defendants filed timely objections and the plaintiff filed a reply. After reviewing the submissions and conducting a de novo review of the motions, responses, report of the magistrate judge, and objections, the Court agrees with the recommended disposition of the motion. The matter will be referred again to the magistrate judge to ready it for trial.

The magistrate judge summarized the facts and procedural history of the case, which need not be repeated here. The magistrate judge concluded that the plaintiff properly pleaded a Fourth Amendment excessive force claim against the individual defendants. Any doubt that the defendants were on notice of the plaintiff's claim is put to rest by the fact that the defendants denied the allegations regarding each officer's conduct; asserted a defense of qualified immunity, which is only applicable to claims against individuals; and engaged in extensive discovery on this issue.

The magistrate judge concluded that there is a genuine issue of material fact with respect to whether defendant Riley's initial deployment of the Taser was objectively reasonable. The magistrate judge also concluded that a jury could find that defendant Riley's second (and potentially third) use of the Taser was unreasonable because the Taser was deployed after the plaintiff had fallen back into the car or was on the ground. He concluded that there is a genuine issue of material fact with respect to whether, and to what extent, the plaintiff was resisting or threatening the officers when defendant Riley deployed the Taser the second and potentially third time.

The defendants argue that Paull's use of the dog was reasonable because he saw the plaintiff begin to arise even after being stunned by the Taser, and because he was worried that the plaintiff was planning to retrieve the gun he had thrown out the window. The magistrate concluded that defendant Paull was not entitled to summary judgment because the video contradicted the defendants' account of events, leaving a genuine issue of material fact as to whether, and to what extent, the plaintiff was resisting. See Vathekan v. Prince George's Cnty., 154 F.3d 173, 178 (4th Cir.1998) (“An attack by an unreasonably deployed police dog in the course of a seizure is a Fourth Amendment excessive force violation.”).

The record is clear that Austin was handcuffed and seated in the back of the police car when Morgan tasered him. The only justification for Morgan's use of the Taser was Austin's failure to place his feet in the car. The magistrate judge, citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004) and Kijowski v. City of Niles, 372 Fed.Appx. 595, 600 (6th Cir.2010) (“[A] stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless. Absent some compelling justification—such as the potential escape of a dangerous criminal or the threat of immediate harm—the use of such a weapon on a non-resistant person is unreasonable.” (internal quotation marks and citations omitted)), concluded that a reasonable jury could conclude that Morgan's use of the Taser to obtain compliance with his order after Austin was subdued and handcuffed was not objectively reasonable.

The magistrate judge recommended that the Court find that defendant Riley is entitled to summary judgment on qualified immunity grounds with respect to his initial deployment of the Taser because the law regarding use of a Taser to incapacitate a suspect who has not yet been subdued is insufficiently clear to have put defendant Riley on notice that his initial deployment of the Taser was unlawful. The magistrate noted that at the time of Austin's arrest, only four courts of appeals had addressed the initial use of a Taser to subdue a resistant suspect, each of which found that it did not constitute excessive force. Report and Recommendation at 21 (citing Mattos v. Agarano, 590 F.3d 1082, 1090 (9th Cir.2010) (discussing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004); Hinton v. City of Elwood, Kan., 997 F.2d 774, 781–82 (10th Cir.1993);Russo v. City of Cincinnati, 953 F.2d 1036, 1044–45 (6th Cir.1992)); Caldwell v. Moore, 968 F.2d 595, 600 (6th Cir.1992)). The plaintiff does not object to that part of the report. A party's failure to file objections to the report and recommendation waives any further right to appeal. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Likewise, the failure to object to an unfavorable portion of the magistrate judge's report releases the Court from its duty to independently review the issue. Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Therefore, the Court will adopt that part of the report.

However, the magistrate judge recommended that the Court find that the defendants are not entitled to summary judgment on qualified immunity grounds with respect to Riley's subsequent use of the Taser, defendant Paull's use of the dog, or defendant Morgan's use of the Taser because the evidence, viewed in the light most favorable to Austin, reveals that he posed no significant threat to the officers once he was on the ground, and the law regarding the use of force against a subdued suspect was clearly established. Report and Recommendation at 19–20 (citing Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir.2009) (citing cases)); see also Meirthew v. Amore, 417 Fed.Appx. 494, 499 (6th Cir.2011) (“[P]rior opinions clearly establish that it is unreasonable to use significant force on a restrained subject, even if some level of passive resistance is presented.”).

The magistrate judge recommended that the Court construe the claim against the police department as one against the Redford Township because it is the real party in interest. Report and Recommendation at 22 n. 6 (citing Haverstick Enterprises, Inc. v. Financial Federal Credit, Inc., 32 F.3d 989, 992 n. 1 (6th Cir.1994)) (“A suit against a city police department in Michigan is one against the city itself, because the city is the real party in interest”). Nevertheless, the magistrate judge recommended that the Court find that the Redford Township Police Department is entitled to summary judgment on both the plaintiffs' failure to train claim and his general policy and custom claim. With respect to his failure to train claim, the magistrate judge concluded that the plaintiff failed to show a deliberate indifference because he has not pointed to similar incidents suggesting that the Township knew of and disregarded any inadequacies in their training program, nor does he point to any evidence suggesting the training was inadequate. The plaintiff's only evidence—defendant Morgan's statement in the police car that he deployed the Taser based on the plaintiff's “[f]ailure to comply to verbal command, sir—my training.... I ask you, I told you, that's all I need, thank you,” Mot. for Summ. J., Ex. 15, Morgan Video at 21:17:19–25—shows, at most, that Morgan was inadequately trained or misunderstood his training.

The magistrate judge also concluded that the plaintiff's argument that the police department's “Less than Lethal Use of Force Policy,” which authorizes the use of a Taser in certain circumstances, was the moving force behind the constitutional violation was meritless because the plaintiff pointed to nothing that showed the policy was in fact the moving force.

The plaintiff has not objected to those parts of the report, and they will be adopted.

Finally, the magistrate judge recommended granting the Township summary judgment with respect to the ethnic intimidation claim because the Township does not fall under the definition of “person” in the Michigan Penal Code. Michigan Compiled Laws § 750.147b(1), therefore, is inapplicable to the Township. The plaintiff did not object.

However, the magistrate judge recommended denying the individual defendants summary judgment on that claim because: (1) Mich. Comp. Laws § 750.147b(3) provides for a civil cause of action; (2) there is a genuine issue of material fact with respect to whether any of the defendants' actions were taken with the specific intent to harass or intimidate the plaintiff on the basis of his race; (3) the plaintiff has offered evidence that the individual defendants committed underlying criminal offenses, namely assault and battery and misconduct in office.

Objections to a report and recommendation are...