Davis v. Pickell

• Decision Date: 26 March 2013
• Docket Number: Case No. 11–11196.
• Citation: 939 F.Supp.2d 771
• Parties: Fernando DAVIS, Plaintiff, v. Robert J. PICKELL, James Gage, Officer Baylock, Officer Macey, Officer Buchanan, and Officer Cocking, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

939 F.Supp.2d 771

Fernando DAVIS, Plaintiff,

v.Robert J. PICKELL, James Gage, Officer Baylock, Officer Macey, Officer Buchanan, and Officer Cocking, Defendants.

Case No. 11–11196.

United States District Court,

E.D. Michigan,

Southern Division.

March 26, 2013.

Daniel G. Romano, Southfield, MI, Gordana Misovski, Romano Law PLLC, Southfield, MI, for Plaintiffs.

H. William Reising, Plunkett & Cooney, Flint, MI, for Defendant.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DAVID M. LAWSON, District Judge.

On February 6, 2013, Magistrate Judge R. Steven Whalen filed a report under 28 U.S.C. § 636(b)(1)(B) recommending that the Court grant in part and deny in part the defendants' motion for summary judgment in this jail beating case. Four defendants filed timely objections, and the plaintiff has filed a response. The matter is now before the Court for de novo review. After thoroughly reviewing the evidence, including the videotape of the event that occurred inside the Genesee County jail on the night in question, the Court is in substantial agreement with the magistrate judge, and therefore will adopt his report and recommendation.

I.

The facts of the case are well summarized by Judge Whalen and need not be repeated here. It is enough to state that sometime late in the night of March 24, 2009, plaintiff Fernando Davis was arrested for drunk driving, transported by the state police to the Genesee County Jail, and booked into a holding cell at the jail. Davis was removed from the multi-prisoner cell and taken to a single-inmate “safety cell.” He alleges that during the transfer, Genesee County deputy sheriffs Baylock, Macey, Buchanan, and Cocking subjected him to excessive force in the course of removing his jacket and shoes. The videotape provides substance to those allegations.

In his report, Judge Whalen concluded that (1) based on the video evidence in the record, Davis has demonstrated that a genuine dispute of material fact exists as to whether the deputies used excessive force in tackling and subduing him while in the single-inmate “safety cell”; (2) based on the same evidence, the plaintiff has established viable claims for state law assault and battery and intentional infliction of emotional distress; (3) the claims against defendants Pickell and Gage must be dismissed because the plaintiff has not established that they had any personal involvement in the conduct at issue; (4) the claims against the defendants in their official capacities must be dismissed because the plaintiff has failed to establish any pattern, practice, custom, or policy as would be required to show municipal liability; (5) the claim for conspiracy is barred by the “intracorporate conspiracy” doctrine; and (6) the state law assault and battery claims against defendants Buchanan and Cocking, who were added to the case later in place of “John Doe” defendants, must be dismissed because they were filed out of time.

The defendants filed specific objections to the magistrate judge's report and recommendation, contending that (1) the magistrate judge erred in recommending that the excessive force claim should not be dismissed because he ignored evidence of the plaintiff's “assaultive conduct” and did not afford the proper deference to the judgment of the deputies on the scene; and (2) the defendants are entitled to governmental immunity on the state law intentional tort claims, even if plaintiff could show that he is entitled to proceed on the constitutional claims of excessive force. According to the defendants, “there is only one version of the facts—that of the deputies, which is supported by the jail video footage.”

The plaintiff did not file objections to the report, and the time for doing so has passed.

II.

Objections to a report and recommendation are reviewed de novo. “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The parties' failure to file objections to the report and recommendation waives any further right to appeal. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596–97 (6th Cir.2006); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Likewise, the failure to object to the magistrate judge's report releases the Court from its duty to review independently the motion. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006). “The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). “ ‘[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings ... believed [to be] in error’ are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file specific objections to a magistrate's report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir.2004).

As mentioned, the plaintiff has not objected to the magistrate judge's report and recommendation, and the Court will adopt without further discussion the part of the recommendation to dismiss (1) the assault and battery claim against defendants Buchanan and Cocking, (2) the conspiracy claims, (3) all claims against defendants Pickell and Gage, and (4) all official capacity claims.

The case is before the Court on the defendants' motion for summary judgment. Summary judgment is appropriate “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). As the Sixth Circuit has explained:

Both claimants and parties defending against a claim may move for summary judgment “with or without supporting affidavits.” Fed.R.Civ.P. 56(a), (b). Such a motion presumes the absence of a genuine issue of material fact for trial. The court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Alexander v. CareSource, 576 F.3d 551, 557–58 (6th Cir.2009).

The plaintiff's federal claims are based on 42 U.S.C. § 1983. To state a claim under that statute, “a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person actingunder the color of state law.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir.2009) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006)). The plaintiff must establish the liability of each individual defendant by that person's own conduct. “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The defendants argue that the facts are uncontested, the evidence does not demonstrate a constitutional violation, and the defendants are entitled to qualified immunity. Not so. The videotape tends to support the plaintiff's version of the events, or at least it can be viewed that way. And on summary judgment, especially when qualified immunity is raised, “[the Court] must review the evidence in the light most favorable to the Plaintiff, taking all inferences in his favor.” McKenna v. Edgell, 617 F.3d 432, 437 (6th Cir.2010) (citations, quotation marks, and alterations omitted). As the Sixth Circuit has explained, “[q]ualified immunity is a question of law, but ‘where the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability.’ ” Ibid. A defendant asserting qualified immunity on summary judgment “ ‘should be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised by the case.’ ” Booher v. N. Ky. Univ. Bd. of Regents, 163 F.3d 395, 396 (6th Cir.1998) (quoting Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir.1998)).

A. Excessive Force

Defendants Baylock, Macey, Buchanan, and Cocking argue that they are entitled to qualified immunity against the plaintiff's claims of excessive force. Qualified immunity is an affirmative defense that protects government actors performing discretionary functions from liability for civil damages when their conduct does “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The purpose of this defense is to strike a balance that “accommodates the tension between permitting litigants to recover damages, which is often the only realistic avenue for vindication of constitutional guarantees, and the social costs of such suits, including the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004) (quotation marks and citation omitted). The defense is intended to protect state actors who must operate along the “hazy border” that divides acceptable from unreasonable conduct....