Johnson v. City of Lincoln Park

• Decision Date: 08 June 2006
• Docket Number: No. 05-CV-71796-DT.,05-CV-71796-DT.
• Citation: 434 F.Supp.2d 467
• Parties: Dina JOHNSON, as Next Friend of Hollis DeAngelo Smith, III, Plaintiff, v. CITY OF LINCOLN PARK, and Lincoln Park Police Officers Paul Cochran, Michael Kroll, Robert McFarland, and Adam Ruffner, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

434 F.Supp.2d 467

Dina JOHNSON, as Next Friend of Hollis DeAngelo Smith, III, Plaintiff, v. CITY OF LINCOLN PARK, and Lincoln Park Police Officers Paul Cochran, Michael Kroll, Robert McFarland, and Adam Ruffner, Defendants.

No. 05-CV-71796-DT.

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

June 8, 2006.

John F. Harrington, Warren, MI, for Plaintiff.

Michael D. Weaver, Plunkett & Cooney, Bloomfield Hills, MI, Michael S. Bogren, Plunkett & Cooney, Kalamazoo, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROSEN, District Judge.

I. INTRODUCTION

This Section 1983 police excessive force case is presently before the Court on the Motion of the City of Lincoln Park and four Lincoln Park Police Officers, Paul Cochran, Michael Kroll, Robert McFarland and Adam Ruffner.¹ Plaintiff has responded to Defendants' Motion and Defendants have replied. Having reviewed and considered the parties' briefs and supporting evidence, and having discussed this matter with counsel for the parties on June 1, 2006, the Court determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

This case arises out of events that occurred at Lincoln Park High School on November 18, 2004. In November 2004, Plaintiff Hollis DeAngelo Smith ("Smith") was 14 years old and a ninth grader at Lincoln Park High School. Smith had a history of disruptive and violent behavior throughout his educational career² and had been classified when he was in Middle School as "emotionally impaired" or "EI." He was, accordingly, serviced by the Lincoln Park Public Schools Department of Special Education. (See Defendants' Ex. 4(d).) Pursuant to the IEP conducted at the end of his eighth grade, Smith was placed in general education classes at Lincoln Park High School and received Resource Room support services. Id.

On November 18, 2004, Smith brought a Nintendo Gameboy hand-held video game to school. Smith admitted in his deposition that he knew that Gameboys were not permitted in school. (Smith Dep., p. 25.) When his science teacher, Mr. Seluck, discovered that Smith had the Gameboy, he told Smith to surrender the game to him. Id. p. 29. When Smith refused to do so, Mr. Seluck sent him to the Assistant Principal's office. Id. pp. 25-27.

Assistant Principal Larry Phillips directed Smith to turn over the Gameboy to him and told him that he could have it back at the end of the day. Smith refused to relinquish the game.³ Mr. Phillips then tried to reach Smith's mother by phone. (He testified that he had hoped that Smith's mother could reason with her son and if not, he intended to tell the mother to come to the school and take her son home for the day.) Ms. Johnson, however, did not answer her phone.⁴ Phillips, therefore, repeated his request to Smith to surrender his Gameboy. Smith again refused. Phillips repeated the directive to surrender the Gameboy three or four more times. Each time, Smith loudly refused to do so. Finally, Mr. Phillips called Paul Cochran, the liaison officer assigned to the high school by the Lincoln Park Police Department, to come to the office to assist him.

Cochran, who was dressed in plain clothes, came to the office. After being informed by Mr. Phillips as to the nature of the problem, Officer Cochran requested Hollis Smith to turn the Gameboy over to Mr. Phillips. Hollis again refused, this time even more loudly and more forcefully than when he spoke to Mr. Phillips. Officer Cochran asked Smith at least three times to turn over the Gameboy and each time Smith refused.

At this point, Officer Cochran told Smith that he would have to search him.⁵ According to Mr. Phillips, Cochran told Smith that he was going to give him until the count of five to decide whether he wanted Cochran to search his pockets. See Phillips Dep., p. 41. Cochran stood in front of Smith, counted to five and then said, "Hollis, are you going to hand over what you have?" Id. Hollis again said no, this time "more cocky" and "more forceful[ly]," at which point, Officer Cochran assisted Smith to stand up, turned him around, and had Smith put his hands upon the office window-wall. Id. When Smith was about to be patted down, Smith took a swing at Officer Cochran. Id. at 45. See also Smith Dep., p. 38.⁶ Officer Cochran was able to block the swing and took Smith to the ground. Id. Smith continued to struggle and kick. Id. See also Cochran Affidavit, Defendants' Ex. B, ¶ 14. As Cochran was attempting to gain control over Smith, Smith bit him—twice on his left wrist and once on his left forearm. Id., ¶ 15. See also, Smith Dep. p. 40.⁷ At that point, Officer Cochran requested that the school secretary call the Lincoln Park Police Department for additional assistance. Id. ¶ 16.

Officers Michael Kroll, Robert McFarland and Adam Ruffner responded to the call. After the officers arrived on the scene, Officer Cochran was able to handcuff Hollis Smith, and once he was handcuffed, Cochran assisted Hollis to his feet and again attempted to check his coat pocket. Id. at ¶ 21. At this point, Smith again became violent and attempted to head but Cochran. Id. at ¶ 22. Cochran, therefore, again took Smith to the ground. Id. at ¶ 23. Smith's continued kicking and thrashing caused Officer McFarland to threaten to use his taser on Smith. Id. at ¶ 24. See also McFarland Dep., Plaintiff's Ex. B, pp. 22-23. McFarland testified:

I said this is a Taser, it has 50,000 volts of electricity that runs through it and if I touch you with it, you're going to get an electrical shock. You need to calm down, let us do what we have to do and we'll get out of here. If you don't calm down, I'm going to tase you and at that point, I did a try fire which shows the electrical charge and I shut it off as soon as the charge went through. And [Smith] said okay. We go back to try to lift him up and as soon as we lifted him up, he started thrashing about again and I said Paul, just step back, I'm going to tase him.

Id.

McFarland testified that he gave Smith one more warning to stop fighting, and when Smith did not heed the warning, McFarland tased him lightly on his lower back area.

McFarland explained that with a "dry stun" it depends on how much clothing the person has on and amount of force used in applying the stun. He had decided just to give Smith a light application so he would get the feeling of it and hoped that that would be enough to get Smith to calm down. However, because Smith had a jacket on and another shirt underneath, Smith had no reaction to the stun. Id. at p. 25. Instead, he continued to struggle and thrash and kick, so Officer Cochran again took Smith to the ground. Id. at p. 27. As Smith continued to struggle with Officer Cochran, McFarland made the decision to tase him a second time. This time, Officer McFarland applied the taser to Smith's bare skin on his lower torso which had become exposed when his shirt came loose from his pants as he struggled. Id. at 28. Finally, Smith stopped struggling. Officer McFarland testified that Smith did not scream or yell, "never made a sound of ouch, never verbalized anything. He just stopped [struggling]." Id.⁸

Smith admitted that the only injuries he suffered as a result of his struggle with Officer Cochran was a rug burn on his forehead and a small mark on his back where he was tased. He did not seek medical treatment for either injury and has no lasting scars. Smith further admitted that neither of the other two officers who came to the school with Officer McFarland, i.e., Officers Kroll and Ruffner, ever touched him. See Smith Dep., p. 58.

Smith was then taken into custody. He was transported to the Lincoln Park Police Department where he sat in a room for about 30 minutes until his mother arrived. Smith admitted that no one touched him while he was at the police station. Id. at p. 59.

Smith was ultimately charged in the Wayne County Juvenile Court with Assaulting a Police Officer and Resisting Arrest.⁹ He was also suspended from school for 10 days. Smith admitted in his deposition that if he had agreed to voluntarily relinquish the Gameboy when Assistant Principal Phillips first made the request, none of the events of November 18, 2004 would have occurred. See Smith Dep., p. 62.

On March 15, 2005, Dina Johnson, Hollis Smith's mother, filed a Complaint on behalf of her son in Wayne County Circuit Court against the Lincoln Park Public Schools, Assistant Principal Phillips, the City of Lincoln Park, and Lincoln Park Police Officers Cochran, McFarland, Kroll and Ruffner. Defendants timely removed the action to this Court on federal question grounds under 42 U.S.C. § 1983. In his Complaint, Plaintiff alleges a Section 1983 claim of violation of his federal constitutional rights under the First, Second, Fourth, Fifth, Eighth and Fourteenth Amendments; a claim of violation of the Michigan Constitution; state law common law claims of assault and battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, defamation, and a claim captioned "violation of ministerial duties."

As noted above, on April 12, 2006, by stipulation of the parties, all claims against the Lincoln Park Public Schools and Assistant Principal Phillips were dismissed, with prejudice. Additionally, Plaintiff has stipulated in his Response Brief to the dismissal of his claims under the First, Second, Fifth, Eighth and Fourteenth Amendments as well as his claims of violation of the Michigan Constitution. See Plaintiffs Response Brief, pp. 11-12, 16. Therefore, the only claims remaining for adjudication are Plaintiff's Section 1983 claim for violation of his Fourth Amendment rights and his state law claims of assault and battery, false arrest/false imprisonment, malicious prosecution, intentional infliction...