Shirley v. City of Eastpointe, Case No. 11-14297
| Decision Date | 30 August 2013 |
| Docket Number | Case No. 11-14297 |
| Parties | SYLVESTER SHIRLEY, Plaintiff, v. CITY OF EASTPOINTE, BRIAN DEAL, OFFICER MERLO, and OFFICER KONAL, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Gerald E. Rosen
Plaintiff Sylvester Shirley commenced this action in this Court on September 29, 2011, asserting federal and state-law claims against the Defendant City of Eastpointe and three Eastpointe police officers arising from the Defendant officers' alleged use of excessive force against Plaintiff in an October 2, 2009 incident outside an Eastpointe bar. This Court's subject matter jurisdiction rests upon Plaintiff's assertion of claims under 42 U.S.C. § 1983 alleging violations of his rights under the U.S. Constitution. See 28 U.S.C. § 1331.
Through the present motion filed on July 31, 2012, the Defendant law enforcement officers and the City of Eastpointe seek an award of summary judgment in their favor on each of the claims asserted against them in Plaintiff's complaint. In support of this motion, Defendants argue primarily (i) that the force used by Defendant Eastpointe police officer Brian Deal to subdue and arrest Plaintiff was appropriate under the circumstances; (ii) that Plaintiff's deposition testimony as to the degree of force used in his arrest may properly be discounted on a number of grounds; (iii) that there is no evidence that the two remaining Eastpointe officers named as Defendants in the complaint, Thomas Konal and Matthew Merlo, inflicted any force whatsoever on Plaintiff in the course of his arrest; and (iv) that Plaintiff has failed to identify a policy or custom of the Defendant City that was the moving force behind any alleged violation of his federal constitutional rights. In response, Plaintiff contends: (i) that his deposition testimony gives rise to genuine issues of fact as to whether the Defendant police officers used excessive force in connection with his arrest; (ii) that his plea of no contest to a state-law charge of resisting and obstructing does not preclude him from pursuing his federal § 1983 claims of excessive force; (iii) that the mere presence of Officers Konal and Merlo at the scene of his arrest permits the imposition of liability against them on the ground that they failed to take action to halt the alleged infliction of excessive force by their fellow officer, Defendant Deal; and (iv) that the record supports the imposition of liability against the Defendant City for its alleged failure to train and discipline its officers.
Defendants' motion has been fully briefed by the parties. Having reviewed theparties' briefs and their accompanying exhibits, as well as the remainder of the record, the Court finds that the relevant allegations, facts, and legal issues are sufficiently presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants' motion "on the briefs." See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on this motion.
As will soon become clear, the two sides in this suit offer sharply divergent accounts of the events surrounding the October 2, 2009 arrest of Plaintiff Sylvester Shirley. Although the Court must view the record in a light most favorable to Plaintiff in resolving Defendants' summary judgment motion, the Court nonetheless summarizes the two different versions of the pertinent events as advanced by Plaintiff and Defendants in their respective briefs.
On October 1, 2009, Plaintiff smoked marijuana at his home and then went with his cousin, Derrick Shirley, to the Marz Bar in Eastpointe, Michigan, arriving at around 11:00 p.m. While at the bar, Plaintiff drank three or more Long Island iced teas along with some beer, and he acknowledges that he was intoxicated.
At around 12:40 a.m., Plaintiff was approached by three employees of the bar and asked to leave the premises. Although Plaintiff has testified that he is "not sure" why these three bouncers asked him to leave the bar and that nothing unusual was happeningat the time, (Plaintiff's Response, Ex. A, Plaintiff's Dep. at 140-42), the bouncers have stated in affidavits that Plaintiff was harassing female patrons or was otherwise engaged in inappropriate conduct. Plaintiff testified at one point that he voluntarily accompanied the bouncers to the door of the bar, and that the bouncers did not put their hands on him or otherwise physically lead him out of the bar. (See id. at 145-46.) He later testified, however, that one of the bouncers threw a blanket over his head on his way to the door, and that the bouncers then led him the rest of the way to the exit. (See id. at 155-58.)
According to Plaintiff, once he and the bouncers reached the exit, one of the bouncers opened the bar door and the other two "grabbed me and threw me out [of] the bar." (Id. at 145-46.) Immediately after the bouncers shoved him out the door, Plaintiff testified that he was grabbed by two police officers and thrown to the ground outside the bar. (See id. at 147-48.) As Plaintiff was lying on his stomach, the two officers stood at either side of him and began to punch, kick, and stomp on him. (See id. at 149, 153, 162-63.) The officers then handcuffed Plaintiff and applied a taser to his back after he had been handcuffed. (See id. at 163, 165-66.) Throughout this interaction with the police officers, Plaintiff testified that he does not recall the officers telling him to cease fighting, get on the ground, or stop resisting. (See id. at 152, 215.) Nor does he recall being warned that the officers were going to deploy a taser. (See id. at 167.)
Plaintiff was largely unable to identify the two officers who inflicted this mistreatment. He testified that the officers were white, taller than him, and wore blue uniforms, and that one of them had a goatee. (See id. at 150-51.) Beyond this, however,Plaintiff was unable to describe the officers, and he testified that he would not be able to identify them if he saw them again or tell "one officer from the other." (Id. 150-52, 171-72, 183, 219-20, 225.) At one point during his deposition, Plaintiff stated that the officers were from two different police departments, Eastpointe and Warren, but he later testified that he was not sure whether they were Warren or Eastpointe officers, or even whether their uniforms were blue. (See id. at 222, 226, 248, 309.) Plaintiff also could not say which of the two officers initially threw him to the ground, handcuffed him, or tased him, nor did he know whether the same officer both handcuffed and tased him or how many times he was tased. (See id. at 148, 167, 216, 218-20, 222-23, 247-49.) Indeed, Plaintiff was unable to say for sure how many police officers were outside the bar when the bouncers removed him, testifying that he observed "[a]t least two" officers. (Id. at 155.)
The bar bouncers and Defendant police officers advance a far different account of their interactions with Plaintiff on the night in question. According to Defendant Eastpointe police officer Brian Deal, he had just begun his shift in a one-man patrol vehicle shortly after midnight on October 2, 2009 when he pulled into the parking lot for the Marz Bar and observed a "commotion" as three bar employees escorted a patron out of the premises. (See Defendants' Motion, Ex. C, Deal Dep. at 17-20.) Officer Deal testified that the patron was "yelling profanities," "saying he wanted to get back into the bar," and "flailing his arms around trying to push his way back into the bar" as the bouncers attempted to "move him out." (Id. at 20-21.)
When the patron, subsequently identified as Plaintiff, started "physicallyassaulting" and "punching" the bouncers "multiple times" in an attempt to get back into the bar, Officer Deal decided to intervene and got out of his squad car, determining at that point that Plaintiff "was going to jail." (Id. at 23-25.) As Officer Deal approached the scene, he ordered Plaintiff to "stop fighting" and "get to the ground," and the bouncers "[p]hysically grabbed" Plaintiff and "took him to the ground." (Id. at 26-28.)1 According to Officer Deal, Plaintiff continued to "flail[] about" and tried to get back up as the bouncers held him down on his stomach, and Officer Deal identified himself as a police officer and ordered Plaintiff to "stay down, place his hands behind his back, relax, cooperate, [and] calm down." (Deal Dep. at 28-29.)
When Plaintiff continued to resist these commands, Officer Deal advised him "probably . . . three or four times" that he would use his taser if Plaintiff did not cooperate and put his hands behind his back. (Id. at 29-30.) Plaintiff instead placed his hands underneath his body, and Officer Deal responded by using his taser to apply a "drive stun" lasting "[t]wo to five" seconds, which caused Plaintiff to "compl[y] immediately" and put his hands behind his back so that the officer was able to handcuff him. (Id. at 30-33.) Officer Deal, with the assistance of the bouncers, then lifted Plaintiff off the ground and placed him in the officer's squad car. (See id. at 34.)
Before Officer Deal had exited his squad car to intervene in the altercationbetween Plaintiff and the bouncers, he had called for backup assistance. The two other Defendant Eastpointe police officers, Thomas Konal and Matthew Merlo, have testified that by the time they arrived at the Marz Bar, Plaintiff had already been handcuffed. (See Defendants' Motion, Ex. E, Konal Dep. at ; Ex. F, Merlo Dep. at 23.) Officer Konal testified that he spoke to one of the bouncers,...
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