Bass v. Robinson
| Decision Date | 12 February 1999 |
| Docket Number | No. 97-1326,97-1326 |
| Citation | 167 F.3d 1041 |
| Parties | Jerry Lorenzo BASS, a/k/a Afif Abdul R. Karriem, Plaintiff-Appellant, v. Kevin ROBINSON; James Lashbrook, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jerry Lorenzo Bass (briefed), Muskegon Correctional Facility, Muskegon, Michigan, for Plaintiff-Appellant.
Sharon D. Blackmon (briefed), Detroit City Law Department, Detroit, Michigan, for Defedants-Appellees.
Before: NELSON, BOGGS, and CLAY, Circuit Judges.
Plaintiff, Jerry Lorenzo Bass, a/k/a Afif Abdul R. Karriem, proceeding pro se, appeals from the district court's order granting summary judgment to Defendants, Kevin Robinson and James Lashbrook, in this civil rights action. Because we find that a genuine issue of material fact exists as to whether Defendants--both police officers for the City of Detroit--used excessive force in effectuating Plaintiff's arrest, the district court's order is AFFIRMED IN PART, REVERSED IN PART, and the case is REMANDED for trial.
On August 12, 1993, Plaintiff was arrested by Defendants for selling narcotics to two undercover police officers. Plaintiff was charged with delivery of cocaine and possession with intent to deliver cocaine. The case proceeded to a jury trial in Wayne County Circuit Court; however, the record is conflicting as to whether the jury returned a guilty verdict on these charges, and Plaintiff subsequently pleaded guilty to being a second habitual offender (Plaintiff's rendition of the events); or whether Plaintiff pleaded guilty to these charges before the conclusion of his trial, and then subsequently pleaded guilty to being a second habitual offender (rendition of events cited in the Magistrate's Report and Recommendation). Nonetheless, portions of transcript testimony provided in the joint appendix indicate that Plaintiff did, in fact, plead guilty to being a second habitual offender. Plaintiff was subsequently sentenced to twelve to twenty-four years imprisonment.
The facts relating to the amount of force used to effect Plaintiff's arrest are in dispute and serve as the basis for his civil rights action. Plaintiff contends that, on the evening in question, he was walking down the street in the area known as the "Cass Corridor" in the City of Detroit, when Officer Robinson ordered him to stop. Plaintiff claims that he complied with the order; however, despite his cooperation, Officer Robinson attacked him both verbally and physically. Plaintiff contends that Officer Robinson put him in a "headlock" and slammed Plaintiff's head against a tree several times, resulting in injuries to Plaintiff's ear, head, neck and back.
Defendants claim that Plaintiff and an alleged accomplice sold drugs to two undercover officers, and that after the transaction was completed, the undercover officers radioed the "arrest crew," of which Defendants were a part, to arrest the suspects. Defendants maintain that Plaintiff resisted, which necessitated Officer Robinson using minimal force to restrain Plaintiff in order to effectuate the arrest. Defendants contend that Plaintiff sustained a minor laceration to his right ear during the ensuing struggle due to Plaintiff's own attempts to flee. Plaintiff was found to be in possession of heroin and cocaine at the time of the arrest. After processing Plaintiff at the police precinct, Defendants transported Plaintiff to Detroit Receiving Hospital where he was treated and released.
On August 16, 1995, Plaintiff filed the instant suit, in forma pauperis, claiming that Defendants' actions violated his rights secured by the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Specifically, in Counts I and II of his complaint, Plaintiff claimed that Defendants used excessive force in arresting Plaintiff on August 12, 1993, in violation of the Eighth (Count I), Fifth, and Fourteenth Amendments (Count II). In Count III, Plaintiff alleged that Defendants conspired to deprive Plaintiff of his Fourth, Fifth, Eighth, and Fourteenth Amendment rights in violation of 42 U.S.C. § 1985. In Count IV, Plaintiff alleged that Lieutenant Lashbrook failed to prevent the injuries Plaintiff sustained at the hand of Officer Robinson, and that Lieutenant Lashbrook participated in a cover-up of the incident after the fact in violation of 42 U.S.C. § 1986. Finally, in Count V, Plaintiff alleged that Defendants denied him equal protection of the law as guaranteed by the United States and Michigan constitutions.
The case proceeded before Magistrate Judge Steven Pepe. Defendants filed a motion for summary judgment, and, on October 30, 1996, the magistrate judge issued a Report and Recommendation regarding Defendants' motion. The magistrate judge recommended that summary judgment be denied as to Plaintiff's claims for violation of his Fourth Amendment rights because genuine issues of fact remained for trial as to whether Officer Robinson used excessive force in arresting Plaintiff and as to whether Lieutenant Lashbrook permitted Officer Robinson's actions. However, the magistrate recommended that Plaintiff's claims brought under the Eighth Amendment, as well as his claims for violation of procedural due process and equal protection under state and federal law be dismissed, and also recommended that Defendants' motion for summary judgment be granted as to Plaintiff's conspiracy claims.
On November 6, 1998, Plaintiff filed an objection to the magistrate judge's recommendation and, after reviewing the same, United States District Court Judge Lawrence Zatkoff issued an opinion and order accepting in part and rejecting in part the magistrate's recommendation. Specifically, the district judge found that:
(1) Magistrate's Recommendation dismissing plaintiff's claims under the Eighth Amendment, for violation of his right to procedural due process and equal protection under state and federal law is hereby ADOPTED as the opinion of the Court; (2) Magistrate's Recommendation dismissing plaintiff's conspiracy claim is hereby ADOPTED as the opinion of this Court; (3) Magistrate's Recommendation that defendants' motion for summary judgment be denied as to plaintiff's claims under the Fourth Amendment is REJECTED.
Bass v. Robinson, No. 95-CV-73197 DT, at 2 (E.D.Mich. Feb. 24, 1997). The district court thereby granted Defendants summary judgment as to all of Plaintiff's claims, and dismissed Plaintiff's complaint. Plaintiff, proceeding pro se, filed this timely appeal from the district court's order.
This Court reviews a motion for summary judgment brought pursuant to Fed.R.Civ.P. 56 de novo. Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.1994). Summary judgment is appropriate where no genuine issue of material fact remains for trial and the moving party is entitled to judgment as a matter of law. Id. The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party satisfies its burden, "the burden shifts to the nonmoving party to set forth specific facts showing a triable issue." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A.
Violation of Plaintiff's Fourth Amendment Rights
Plaintiff claims that the district court erred in summarily dismissing his claim against Officer Robinson because he presented sufficient evidence to create genuine issues of fact for trial as to whether excessive force was used by Officer Robinson in effectuating Plaintiff's arrest. Specifically, Plaintiff claims that his verified allegations that he stopped at Officer Robinson's command and did not attempt to flee or resist arrest, along with Lieutenant Lashbrook's trial testimony that a photograph taken of Plaintiff at the police department showed some blood on Plaintiff's right shoulder, as well as the police log for the day which indicates that Plaintiff had been "injured" and had a "minor cut on rt ear" create factual issues as to whether Officer Robinson used excessive force in arresting Plaintiff. In addition, Plaintiff also contends that Officer Robinson's trial testimony creates an issue of fact as to whether Plaintiff resisted arrest. The portion of Officer Robinson's testimony to which Plaintiff refers states as follows:
Unlike the magistrate, the district court was not persuaded that this evidence created a genuine issue of fact as to whether Plaintiff resisted arrest and as to whether excessive force was used. The district court did not believe that Officer Robinson's trial testimony created an issue of fact because "Defendant Robinson never stated that Plaintiff offered no resistance to the arrest, but testified only that at that time the handcuffs were finally being placed on Plaintiff, he was not resisting." Bass, No. 95-CV-73197 DT, at 7 (emphasis in original). In addition, the district court found that:
The events that comprise the basis for this instant action, transpired in a reputed area of high drug trafficking. It is well-known that drug trafficking activities are often associated with the possession...
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