Davis v. City of Novi

• Decision Date: 04 September 2018
• Docket Number: Case No. 16-11846
• Parties: DEMARIO DAVIS, Plaintiff, v. CITY OF NOVI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

DEMARIO DAVIS, Plaintiff, v. CITY OF NOVI, et al., Defendants.

Case No. 16-11846

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 4, 2018

Honorable Laurie J. Michelson

Magistrate Judge Elizabeth A. Stafford

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART OFFICER FRANCKOWIAK'S AMENDED MOTION FOR SUMMARY JUDGMENT [33]; GRANTING IN PART AND DENYING IN PART ST. JOHN PROVIDENCE, PROVIDENCE PARK HOSPITAL, ELIZABETH PLECHA AND KARA VIDUSIC'S PARTIAL MOTION TO DISMISS [32]; AND GRANTING IN PART AND DENYING IN PART THEIR AMENDED MOTION FOR SUMMARY JUDGMENT [34]

Demario Davis was driving home in the early morning hours when he was pulled over by Officer Chris Franckowiak. Because Davis refused a breathalyzer, Franckowiak arrested Davis and took him to the hospital for a blood test. There, Davis asserts that Franckowiak directed Elizabeth Plecha, a physician's assistant, to perform a rectal search to look for drugs. Defendants maintain Plecha performed a digital rectal exam because of Davis' complaints of back pain and bowel incontinence.

Based on that rectal search, Davis sued Franckowiak, the City of Novi, Providence Park Hospital and its staff Elizabeth Plecha and Kara Vidusic ("Hospital Defendants"). Davis agreed to voluntarily dismiss several tort claims and his Monell claims. (R. 40.) Remaining are claims of excessive force, failure to intervene, unlawful search and seizure, and conspiracy brought pursuant to 42 U.S.C. § 1983; claims of assault and battery and intentional infliction of emotional distress under state law; and respondeat superior claims against the hospital. (R. 1, 40.)

All Defendants now move for summary judgment.¹ (R. 33, 34.) The Hospital Defendants also seek partial dismissal pursuant to Federal Rule of Civil Procedure 12(c). (R. 32.) Based on the parties' extensive briefing, the Court does not believe oral argument will aid in the resolution of these motions. See E.D. Mich. LR 7.1(f)(2). For the following reasons, both Franckowiak's and the Hospital Defendants' motions for summary judgment will be granted in part and denied in part. The Hospital Defendants' partial motion to dismiss will also be granted in part and denied in part.

I.

In the early hours of June 21, 2014, Davis was driving home on I-96 after an evening at the Lucky Strike bowling alley when a City of Novi police officer, Chris Franckowiak, initiated a traffic stop. (R. 33-2, PageID.1755-58.) Franckowiak asked Davis to take a breathalyzer test, but Davis repeatedly refused. (R. 33-2, PageID.1761.) So Franckowiak arrested Davis and, after obtaining a search warrant from a state court judge, took Davis to Providence Hospital to get his blood drawn. (R. 33-2, PageID.1761.)

At the hospital, Kara Vidusic, a nurse, drew Davis' blood pursuant to the warrant; and Elizabeth Plecha, a physician's assistant, performed what she deemed a digital rectal exam. Davis describes it as an unlawful rectal search for drugs. What each party did, and why, is in dispute. So what follows is each side's version, though the Court recognizes that it has to view the facts in the light most favorable to Davis.

According to Franckowiak, after arriving at the hospital with Davis, he checked in with registration and showed the warrant for the blood draw. (R. 33-5, PageID.2291.) After waiting a few minutes, Davis and Franckowiak were taken to a room for the blood draw. (R. 33-5, PageID.2292.) Franckowiak handcuffed one of Davis' arms to the bed. (Id.) Nurse Vidusic came into the room to perform the blood draw. (R. 33-5, PageID.2300.) Because Davis physically resisted, Franckowiak held one of his arms to restrain him. (R. 33-5, PageID.2301.) After the blood draw, Franckowiak told either physician assistant Plecha or Vidusic that Davis wanted to see a physician for neuropathy problems, because Davis previously expressed that to him. (R. 33-5, PageID.2305.) Franckowiak then packed up the blood draw samples and stepped into the hall to complete paperwork. (R. 33-5, PageID.2306.) He testified that he could not hear what was happening between Plecha and Davis. (R. 33-5, PageID.2308.)

Based on the documentation she reviewed, Plecha testified that she saw Davis before the blood draw. (R. 33-3, PageID.2098-99.) She testified that she must have met with him because he requested to see a physician, as a blood draw would not require a physician's presence. (Id.) She testified, however, that Franckowiak never told her anything about Davis requesting medical treatment. (R. 33-3, PageID.2129.) She completed a report pursuant to her evaluation. (R. 33-3, PageID.2103, 2110; R. 31-4.)

According to Plecha's report, Davis told her that he was having low-back pain and that he lost control of his bowels when the police handcuffed him. (R. 33-3, PageID.2131-33.) Plecha decided, based on her medical opinion, to perform a digital rectal exam to check for "rectal tone and to assess for any saddle anesthesia." (R. 33-3, PageID.2170; R. 37-9, PageID.2985-86.) Plecha told Davis that she was going to perform a digital rectal exam. (R. 33-3, PageID.2138.) And Davis obliged, voluntarily turning on his side to allow Plecha to perform the exam. (R. 33-3,PageID.2084.) However, Plecha did not notice any evidence that Davis had soiled himself. (R. 33-3, PageID.2094.)

For her part, Vidusic has no independent memory of that night. (R. 33-4, PageID.2203.) She testified, after reviewing the records, that she performed the blood draw and completed triage notes for Davis, based upon the medical history he provided. (R. 33-4, PageID.2221; R. 31-5.)

Bridget Yousif worked registration that night. (R. 37-9, PageID.3036-3037; R. 37-6, PageID.2838.) When a patient arrives, Yousif is responsible for preparing a "patient facesheet" that reflects the patient's chief complaint. (R. 31-8, PageID.1181-84.) At the time of Yousif's deposition, Defendants had produced only one facesheet for Davis which listed "blood draw" as his chief complaint. (R. 37-8.) Defendants subsequently produced another factsheet that listed "neuropathy" as another basis for admission. (37-10.) Yousif's signature is also on a general consent form for Davis—a form that is not necessary for a blood draw when police have a warrant, as was the case here. (R. 37-6, PageID.2855.) She testified that, although she had no recollection of that night, she would have only signed the consent form if Davis gave her verbal consent to do so. (R. 37-6, PageID.2857.) She testified that, generally, if someone is handcuffed, people will give verbal consent and she will sign for them. (R. 337-6, PageID.2857.)

Dr. Robert Edwards was the supervising physician for Plecha that night. (R. 31-6, PageID.1123-24.) He testified that he would not see a patient who was only at the hospital for a blood draw. (R. 31-6, PageID.1123.) Although he did not recall physically examining Davis, he testified that he would have only obtained the information in his report by examining the patient. (R. 31-6, PageID.1126-29.) He also does not recall providing Plecha permission to perform the rectal exam, but added that Plecha did not need his permission to do so. (Id.) He agreed, however,that Plecha's "medical decision making was appropriate and medically necessary." (R. 31-6, PageID.1144.)

Davis testified to a very different series of events.

Once at the hospital, Davis was taken directly to a room for the blood draw. (R. 33-2, PageID.1768-69.) His left arm was handcuffed to a stretcher. (Id.) The first person he spoke to was Vidusic. (R. 33-2, PageID.1765-66.) He gave her his medical history, including his history of back pain, current back pain, and current medications. (R. 33-2, PageID.1964, 1973, 1986.) She also took his vitals. (R. 33-2, PageID.1963.) While he relayed his medical history, he did not ask for any medical treatment for his back nor did he request to see a doctor. (R. 33-2, PageID.1778, 1908, 1986.) Davis resisted the blood draw, so hospital security held his legs, Officer Franckowiak put his elbow on Davis' neck, and Vidusic drew blood from his handcuffed left arm. (R. 33-2, PageID.1775-79.)

After the blood draw, Davis heard Officer Franckowiak tell Plecha from behind the hospital curtain by his bed, "he's hiding something. We need to do a rectal." (R. 33-2, PageID.1780, 1783.) Plecha responded, "okay, I'll do a rectal." (R. 33-2, PageID.1783.) Plecha then pulled back the curtain to enter the room. (Id.) Officer Franckowiak followed, removed the handcuffs from Davis' left hand, and handcuffed both hands to the right side of the stretcher forcing him on his side. (R. 33-2, PageID.1787.) He told Plecha, "he's drunk, high and all of the above." (R. 33-2, PageID.1922.) Then, in the presence of Officer Franckowiak, Vidusic held his body down and Plecha performed a rectal exam. (R. 33-2, PageID.1789-92.) Davis asked, "what [are] you . . . doing?" and Officer Franckowiak replied, "you're making matters worse." (R. 33-2, PageID.1793.) After the exam, he heard Plecha say "good tone" to Officer Franckowiak. (R. 33-2, PageID.1800.) Davis described the pain from the exam as "ten [out of ten]," some of the worst pain he has experienced. (R. 33-2, PageID.1795.)

Davis states that he did not mention his current back pain until after the rectal search, when he spoke with Dr. Edwards. (R. 33-2, PageID.1778.) He testified that the doctor asked him a few questions about his medical history, surgery history, and current medications. (R. 33-2, PageID.1836.) The doctor also examined his surgical scar on his back. (R. 33-2, PageID.1838.)

Davis maintains that he never gave his consent for any type of medical evaluation or treatment that night. (R. 33-2, PageID.1834.) He certainly never consented to a digital rectal exam. (R. 33-2, PageID.1963.) He also denies talking to anyone from registration, ever being read a consent form, or ever giving someone permission to sign a consent form on his behalf. (R. 33-2, PageID.1766, 1961, 1969.) Davis denies any...