Niewolak v. CITY OF HIGHLAND PARK, MI

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL NIEWOLAK, 2:19-CV-13386-TGB

Plaintiff,

ORDER GRANTING IN PART

vs. AND DENYING IN PART

DEFENDANTS’ MOTION FOR

CITY OF HIGHLAND PARK, MI, JUDGMENT ON THE

SGT KEATH BARTYNSKI, SGT PLEADINGS (ECF NO. 6)

HEATHER HOLCOMB, LT

EDWARDS,

Defendants.

This matter is before the Court on Defendants Sergeant Keath

Bartynsky, Sergeant Heather Holcomb, and Lieutenant Edwards1

(together “Individual Officers”), and Defendant City of Highland Park’s

Motion for Judgment on the Pleadings. ECF No. 6.2 For the reasons

stated herein, the Court will GRANT IN PART and DENY IN PART

Defendants’ motion.

1 None of the pleadings identify Lieutenant Edwards’ first name.

2 While captioned as a Motion for Judgment on the Pleadings, Defendants’ motion is

actually a motion for partial judgment on the pleadings because it fails to address

Plaintiff’s constitutional claims against Defendant Bartynsky (Counts I and II), or

Plaintiff’s claims against any of the individual Defendant officers for False Arrest and

Imprisonment (Count IV), Intentional Infliction of Emotional Distress (numbered

incorrectly in the Complaint as a second “Count V”) or Assault and Battery (Count

VI).

I. Background

On December 5, 2017, Plaintiff Michael Niewolak claims that while

he was working at Great Lakes Auto in Highland Park and attempting

to close the gate of the business, Defendant Sgt. Keath Bartynski

confronted him, beat him, and arrested him without probable cause. ECF

No. 1, PageID.3-4. More specifically, Plaintiff alleges that Bartynski

grabbed him, threw and tackled him to the ground twice, and then

handcuffed him in an excessively tight manner—all without probable

cause or legal justification. Id. He also alleges that when Defendants

Holcomb and Edwards arrived on the scene, they “participated in and/or

failed to stop” Defendant Bartynski’s use of excessive force. Id. at

PageID.4. Plaintiff contends that Holcomb and Edwards also “put their

hands on Plaintiff and refused to loosen the handcuffs although Plaintiff

informed each and every one of them that the handcuffs were too tight

and causing him severe pain and/or requested that the handcuffs be

loosened.” Id. He contends that being thrown to the ground and

handcuffed caused him “pain and injury,” as well as “abrasions and

scratches.” Id.

Niewolak contends that all three officers then arrested him without

any cause and transported him to the Highland Park jail where he was

incarcerated without probable cause. Id. He also alleges that all charges

against him were dropped and that the Defendant Officers “knew that

Plaintiff had not committed any crime and knew they had no justification

to arrest Plaintiff but conspired to falsely arrest him, detain him and

imprison him all the while knowing that he did not commit any crimes.”

Id. at PageID.4-5. Finally, Niewolak alleges that the officers threatened

that if Plaintiff sued them, they would charge him with a felony.

Niewolak now brings eight claims: (1) Violation of the Fourth

Amendment under 42 U.S.C. § 1983 (Unreasonable Search and Seizure)

(against the Individual Officers); (2) Violation of the Fourth Amendment

under 42 U.S.C. § 1983 (Excessive Force) (against the Individual

Officers); (3) Violation of the Fourth Amendment by the City of Highland

Park (i.e., Monell claim); (4) False Arrest and Imprisonment (against the

Individual Officers); (5) Ethnic Intimidation in Violation of M.C.L. §

750.147(b) (against all Defendants); (6)3 Intentional Infliction of

Emotional Distress (against the Individual Officers); (7) Assault and

Battery (against all Defendants); and (8) Gross Negligence (against the

Individual Officers). After answering Plaintiff’s complaint (ECF No. 5),

Defendants now move for judgment on the pleadings on some of

Plaintiff’s claims. ECF No. 6.

II. Standard of Review

A motion for judgment on the pleadings pursuant to Fed. R. Civ. P.

12(c) is subject to the same standard of review as a Rule 12(b)(6) motion

3 The Complaint actually has two “Count V’s,” with both the Ethnic Intimidation

claim and the Intentional Infliction of Emotional Distress claim being labeled as

Count V. If numbered correctly, the claims would correspond to the number in

parentheses above.

to dismiss for failure to state a claim upon which relief can be granted.

Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). Under Rule

12(b)(6), the Court must “construe the complaint in the light most

favorable to the plaintiff and accept all allegations as true.” Keys v.

Humana Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain

“detailed factual allegations,” but it must contain more than “labels and

conclusions” or “a formulaic recitation of the elements of a cause of

action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A court

“may consider the Complaint and any exhibits attached thereto, public

records, items appearing in the record of the case and exhibits attached

to defendant’s motion to dismiss so long as they are referred to in the

Complaint and are central to the claims contained therein.” Bassett v.

Nat’l Collegiate Athletic Ass’n., 528 F.3d 426, 430 (6th Cir. 2008).

III. Discussion

A. Plaintiff’s Unreasonable Search and Seizure and Excessive

Force Claims (Counts I & II) and Defendants Holcomb’s and

Edwards’ Claims of Qualified Immunity.

Plaintiff asserts that the Individual Officers violated his Fourth

Amendment rights against unreasonable searches and seizures and

excessive force when they seized and imprisoned Plaintiff despite

knowing that they lacked probable cause to arrest and detain him, and

for handcuffing his wrists too tightly, causing injury. ECF No. 1,

PageID.5-9. While Sgt. Bartynski does not invoke qualified immunity or

otherwise move for judgment on the pleadings as to Plaintiff’s excessive

force and unreasonable search and seizure claims,4 Sgt. Holcomb and Lt.

Edwards have claimed they are protected by qualified immunity as

governmental officials acting within the scope of their duty. ECF No. 6,

PageID.56-62. “Qualified immunity is an affirmative defense shielding

governmental officials from liability as long as their conduct ‘does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Cartwright v. City of Marine City,

336 F.3d 487, 490 (6th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Qualified immunity is traditionally a two-step inquiry

where courts must determine “whether the plaintiff has shown a

violation of a constitutionally protected right” and whether that right is

so “clearly established” that a “reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). The district court may address the qualified immunity

analysis in any order. Kent v. Oakland Cty., 810 F.3d 384, 390 (6th Cir.

2016).

“The plaintiff also must allege with particularity ‘facts that

demonstrate what each defendant did to violate the asserted

4 These claims against Bartynski (Counts I & II) therefore survive.

constitutional right.’” Courtright v. City of Battle Creek, 839 F.3d 513, 518

(6th Cir. 2016) (quoting Heyne v. Metropolitan Nashville Public Schools,

655 F.3d 556, 564 (6th Cir. 2011)). Ultimately, the plaintiff bears the

burden of establishing that the officials are not entitled to qualified

immunity. Cartwright, 336 F.3d at 491. “The test is whether, reading the

complaint in the light most favorable to the plaintiff, it is plausible that

an official’s acts violated the plaintiff’s clearly established constitutional

right.” Heyne, 655 F.3d at 562-63. While “insubstantial claims against

government officials should be resolved as early in the litigation as

possible, preferably prior to discovery,” Johnson v. Moseley, 790 F.3d 649,

653 (6th Cir. 2015), the Sixth Circuit has also “cautioned that ‘it is

generally inappropriate for a district court to grant a 12(b)(6) motion to

dismiss on the basis of qualified immunity.’” Courtright, 839 F.3d at 518

(quoting Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)).

“Although an officer’s entitlement to qualified immunity is a threshold

question to be resolved at the earliest possible point, that point is usually

summary judgment and not dismissal under Rule 12.” Wesley, 779 F.3d

at 433-34 (internal marks and citations omitted).

1. Unreasonable seizure and arrest

Plaintiff alleges that Bartynski, Holcomb, and Edwards,

“unlawfully and without probable cause, and all the while knowing no

crime had been committed, unreasonably searched, seized and detained

Plaintiff.” ECF No. 1, PageID.6. Later, Plaintiff alleges that the

Defendants also lacked probable cause to “arrest” Plaintiff and that all

charges against him were dropped. Id. at PageID.4-6. Finally, he claims

that the officers threatened to charge him with a felony if he sued them.

Id. at PageID.4-5.

“The constitutional right to ‘freedom from arrest in the absence of

probable cause’ is clearly established within our circuit.” Courtwright,

839 F.3d at 520 (quoting Wesley, 779 F.3d at 428). Therefore, to survive

the motion to dismiss, Niewolak must allege facts that make out a

plausible violation of that constitutional right, i.e., that his arrest was

unsupported by probable cause. Id. at 521. A police officer has probable

cause for arrest if, at the time the officer makes the arrest, “the facts and

circumstances within [the officer’s] knowledge and of which [he] had

reasonably trustworthy information were sufficient to warrant a prudent

man in believing that the [plaintiff] had committed or was committing an

offense.” Courtright, 839 F.3d at 521 (quoting Beck v. Ohio, 379 U.S. 89,

91 (1964)). “In other words, probable cause exists only when the police

officer ‘discovers reasonably reliable information that the suspect has

committed a crime.’” Id. (quoting Gardenhire v. Schubert, 205 F.3d 303,

318 (6th Cir. 2000)).

To be sure, Plaintiff’s factual allegations surrounding his arrest are

sparse. But nevertheless, there is nothing in the complaint, or anything

else in the record, that suggests that Plaintiff was committing any offense

when Sgt. Bartynski approached him. Viewing the allegations in the

complaint in the light most favorable to Niewolak, Plaintiff was at his

place of employment, attempting to close the gate of the business when

Sgt. Bartynski drove up, out of the blue, approached Plaintiff, accosted

him and arrested him. Defendants contend that if Plaintiff is suggesting

that Holcomb and Edwards arrived after he was arrested, then the

question of whether probable cause existed to warrant the arrest was not

a decision that Holcomb or Edwards had to make. ECF No. 6, PageID.59

(citing Greene v. Barber, 310 F.3d 889, 898 (6th Cir. 2002) (finding that

because the relevant officers arrived just as a third officer was advising

the plaintiff that he was under arrest, the relevant officers were entitled

to assist their fellow officer in making the arrest and reasonable officers

in their position “would have had no reason to suppose that their conduct

was in any way unlawful”)). But reading the complaint in the light most

favorable to Plaintiff, it is alleging that Holcomb and Edwards assisted

Bartynski in making the decision to arrest Plaintiff. See ECF No. 1,

PageID.4 (¶ 14 “Each and every named Defendant officer then arrested

Plaintiff without any cause and resulting in Plaintiff being transported

to the Defendant City of Highland Park jail where he was incarcerated

without probable cause and/or any justification whatsoever.”). Therefore,

Niewolak alleges that Holcomb and Edwards participated in the decision

to arrest him, even though the only thing Niewolak alleges he did was

attempt to close the gate of his employment. Plaintiff alleges that the fact

that all charges against him were subsequently dropped supports his

position that the arrest was without probable cause.

Because Niewolak has stated a plausible claim that his arrest was

unsupported by probable cause, he has alleged a violation of a clearly

established constitutional right. As any officer would know of the settled

constitutional requirement that an arrest must be based on probable

cause, Holcomb and Edwards are not entitled to qualified immunity on

Plaintiff’s unreasonable seizure and arrest claim at this motion to

dismiss stage.

2. Excessive Force

Plaintiff’s complaint also alleges that Defendants employed

unreasonable and unnecessary force when they “ignored Plaintiff’s

requests to loosen the handcuffs and/or complaints that the handcuffs

were too tight, and failed to loosen the handcuffs resulting in injuries to

Plaintiff’s wrists.” ECF No. 1, PageID.8. The complaint alleges that this

caused Plaintiff “pain and injury in addition to multiple abrasions and

scratches.” Id. at PageID.4. The complaint first names Defendant

Bartynski as being the individual who grabbed Plaintiff, threw and

tackled him to the ground twice and handcuffed him excessively tight.

ECF No. 1, PageID.4. However, it then alleges that Holcomb and

Edwards arrived “and participated in and/or failed to stop the assault on

Plaintiff” “when they too put their hands on Plaintiff and refused to

loosen the handcuffs” despite Plaintiff’s pleas to loosen because they were

causing pain and injury. Id.

Claims alleging the use of excessive force during an arrest are

considered under the Fourth Amendment’s “objective reasonableness”

standard. Graham v. Connor, 490 U.S. 386, 396 (1989). This standard

requires us to consider

the facts and circumstances of each particular case, including

the severity of the crime at issue, whether the suspect poses

an immediate threat to safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.

Id. at 396. In the scope of handcuffing, “[t]he law is clear in this Circuit

regarding the prohibition against excessively forceful handcuffing.”

Baynes v. Cleland, 799 F.3d 600, 616-17 (6th Cir. 2015); see also

Kostrzewa v. City of Troy, 247 F.3d 633, 641 (6th Cir. 2001) (the right to

be free from “excessively forceful handcuffing” is clearly established for

qualified immunity purposes). Accordingly, it was clearly established in

2017 that Plaintiff had a right to be free from excessively forceful

handcuffing. See also Courtright, 839 F.3d at 519.

However, under a qualified immunity analysis, the Court must also

consider whether Niewolak has set forth sufficient allegations that

Holcomb and Edwards engaged in excessively forceful handcuffing. To

establish an excessive force claim based on handcuffing, the plaintiff

must allege that: (1) the plaintiff complained about the tightness of the

handcuffs, (2) the officers ignored the plaintiff’s complaint, and (3) the

handcuffs caused a physical injury. McGrew v. Duncan, 937 F.3d 664, 668

(6th Cir. 2019). Moreover, “[n]ot all allegations of tight handcuffing . . .

amount to excessive force.” Lyons v. City of Xenia, 417 F.3d 565, 575 (6th

Cir. 2005). “[A] subjective feeling of pain or numbness standing alone

does not constitute a physical injury.” Jackson v. Lubelan, 657 Fed.Appx.

487, 501 (6th Cir. 2016). But “[t]he extent of the physical injury suffered

by the plaintiff need not be severe in order to sustain the excessive-force

claim.” Courtright, 839 F.3d at 519 (citing Morrison v. Bd. of Trs., 583

F.3d 394, 402 (6th Cir. 2009) (finding that allegations of bruising, wrist

marks, and “attendant pain” suffered by the plaintiff while she was

handcuffed were sufficient to proceed past summary judgment).

Here, Plaintiff has alleged sufficient facts to state a claim of

excessively forceful handcuffing against Holcomb and Edwards. Plaintiff

alleges that (1) he complained to each of the officers that the handcuffs

were too tight, (2) that each of the officers ignored Plaintiff’s requests to

loosen the handcuffs, and (3) that the officers’ failure to loosen the

handcuffs resulted in injuries to Plaintiff’s wrists, including abrasions

and scratches. ECF No. 1, PageID.4 (¶ 15); id. at PageID.8 (¶ 33). That

Plaintiff does not distinguish between the individual officers at this time

is not dispositive. An excessive force handcuffing claim may be alleged

against officers even if those officers did not physically handcuff the

plaintiff, but they heard the plaintiff’s complaints and did nothing.

Baynes v. Cleland, 799 F.3d 600, 608-09 (6th Cir. 2015) (denying qualified

immunity for officer who did not place handcuffs on the plaintiff but

heard the plaintiff complain that the handcuffs were too tight). So long

as Plaintiff alleges that Holcomb and Edwards heard him complain that

the handcuffs were too tight and did nothing, a claim can be brought

against them. Id. Plaintiff has alleged as much. Therefore, Defendants

Holcomb and Edwards are not entitled to qualified immunity on

Plaintiff’s excessive force claim at the motion to dismiss stage.5

B. Whether the Remainder of Plaintiff’s Claims that

Defendants Contest Should be Dismissed Without Prejudice

Defendants likewise move to dismiss all claims against the City and

state law claims of ethnic intimidation and gross negligence against the

officers. The Individual Officers also challenge the Fourteenth

Amendment claim of excessive force and/or Substantive Due Process.

Plaintiff has agreed to dismiss each of these claims without prejudice

except that he still maintains that he has sufficiently pled a Fourteenth

Amendment violation for excessive force under the Substantive Due

Process clause.

5 Plaintiff’s complaint also states that he is suing the individual officers in their

official capacity for these Fourth Amendment violations. But “an official-capacity

claim is merely another name for a claim against the municipality.” Essex v. Cty. of

Livingston, 518 Fed.Appx. 351, 354 (6th Cir. 2013) (citing Cady v. Arenac Cnty., 574

F.3d 334, 342 (6th Cir. 2009) (“In an official capacity action, the plaintiff seeks

damages not from the individual officer, but from the entity for which the officer is

an agent.”). Because Plaintiff has agreed to dismiss all claims against the City of

Highland Park without prejudice and therefore Defendant Highland Park will be

dismissed from this lawsuit without prejudice, the Court will likewise dismiss

without prejudice Plaintiff’s claims against the officers in their official capacity.

1. Monell Claim (Count III)

Defendants move to dismiss Plaintiff’s claim that the City of

Highland Park permitted customs, practices, and/or policies which

resulted in the violation of Plaintiff’s constitutional rights, as alleged in

Counts I and II. ECF 1, PageID.9-12. More specifically, the complaint

alleges that the City failed to adequately train and supervise its officers

regarding arrests and the use of excessive force on arrestees, failing to

fully investigate citizen complaints, failing to discipline officers who the

City knows or should know are violating citizens’ constitutional rights,

and failing to adequately train officers on the proper policies and

procedures for establishing probable cause to arrest. Id. Plaintiff

contends that defense counsel failed to contact Plaintiff’s counsel prior to

filing its motion, and that if Defendants had done so, Plaintiff would have

agreed to dismiss this claim without prejudice. ECF No. 12, PageID.91-

92. Plaintiff argues that whether Defendants are entitled to judgment on

the pleadings on this claim should therefore be moot and that

Defendants’ motion with respect to this issue should be denied. Id.

Defendants believe this count should be dismissed with prejudice.

However, given that Defendants failed to seek concurrence from

Plaintiffs prior to filing their motion in accordance with Local Rule 7.1(a),

Plaintiff did not meaningfully respond to the merits of Defendants’

arguments as to this count. Because Defendants failed to seek

concurrence from Plaintiff prior to filing their motion in contravention of

Local Rule 7.1(a) and Plaintiff agrees to dismiss this claim without

prejudice, the Court DENIES Defendants’ motion with respect this claim

and ORDERS that Plaintiff file a notice of voluntary dismissal with

respect to Count III within seven (7) days of the entry of this Order.

2. State Claims Against the City of Highland Park

Plaintiff also brought various state law claims against the City of

Highland Park: Count IV, for False Arrest and Imprisonment, Count V,

for Ethnic Intimidation, and Count VII, for Assault and Battery. Though

Plaintiff agrees to dismiss these claims without prejudice (ECF No. 12,

PageID.95-96), Defendants contend that dismissal with prejudice is

appropriate due to the apparent governmental immunity that the City

enjoys from tort liability. ECF No. 13, PageID.99.

Under the Governmental Tort Liability Act (“GTLA”), M.C.L. §

691.1407, “[e]xcept as otherwise provided in [the] act, a governmental

agency is immune from tort liability if [it] is engaged in the exercise or

discharge of a governmental function.” M.C.L. § 691.1407(1). The

Michigan Supreme Court has held that, “[a]ccordingly, a governmental

agency is immune unless the Legislature has pulled back the veil of

immunity and allowed suit by citizens against the government.” Mack v.

City of Detroit, 467 Mich. 186, 195, 649 N.W.2d 47 (2002). The GTLA has

allowed suit against a governmental agency in only five areas. Id. The

five statutory exceptions to governmental immunity are the “highway

exception,” M.C.L. § 691.1402, the “motor vehicle exception,” M.C.L. §

691.1405, the “public building exception,” M.C.L. § 691.1406, the

“proprietary function exception,” M.C.L. § 691.1413, and the

“governmental hospital exception,” M.C.L. § 691.1407(4). Id. at 195 n.8.

And a party suing a unit of government is required to plead facts in

avoidance of immunity, as governmental immunity is not an affirmative

defense, but a characteristic of government which prevents imposition of

tort liability. Id. at 198, & n.15. See also Hall v. McCarty, No. 12-12064,

2013 WL 1012999, at *8 (E.D. Mich. Mar. 14, 2013). Here, Plaintiff’s

complaint does not plead any facts stating or otherwise suggesting that

the City was not engaged in the exercise or discharge of a governmental

function or that any of the five statutory exceptions applied. Accordingly,

Defendants’ motion is GRANTED as to Count IV for False Arrest and

Imprisonment, Count V labeled Ethnic Intimidation, and Count VI

Assault and Battery and Plaintiff’s state claims against the City of

Highland Park are DISMISSED WITHOUT PREJUDICE.

3. Fourteenth Amendment Claim

In Count II of Plaintiff’s complaint, Niewolak alleges that

Defendants’ excessive use of force violated not only his rights under the

Fourth Amendment, but the Fourteenth Amendment as well. ECF No. 1,

PageID.7-9. Excessive force claims can fall under the Fourth Amendment

or the Fourteenth Amendment. Coley v. Lucas Cty., 799 F.3d 530, 537

(6th Cir. 2015). “[T]he applicable amendment depends on the plaintiff’s

status at the time of the incident: a free citizen in the process of being

arrested or seized; a convicted prisoner; or someone in ‘gray area[s]’

around the two.” Id. “When a free citizen claims that a government actor

used excessive force during the process of an arrest, seizure, or

investigatory stop, we perform a Fourth Amendment inquiry[.]” Id.

“These Fourth Amendment protections extend through police booking

until the completion of a probable cause hearing.” Id. (citing Aldini v.

Johnson, 609 F.3d 858, 866, 67 (6th Cir. 2010)). Here, all of Plaintiff’s

allegations of excessive force occurred during the arrest process and

certainly before any probable cause hearing. Therefore, the Fourth

Amendment, not the Fourteenth Amendment, applies to his excessive

force claim. Therefore, Count II to the extent it alleges a violation of the

Fourteenth Amendment is DISMISSED WITH PREJUDICE.

4. Claims for Gross Negligence and Ethnic Intimidation

Against the Individual Officers (Counts V & VII)

Finally, Plaintiff brought claims for ethnic intimidation (Count V)

and gross negligence (Count VII) against the Individual Officers.

Defendants have moved to dismiss these claims, ECF No. 6, PageID.63-

66, but Plaintiff has agreed to dismiss these claims without prejudice.

Again, because Defendants failed to seek concurrence from Plaintiffs

prior to filing their motion in accordance with Local Rule 7.1(a), Plaintiff

did not meaningfully respond to the merits of Defendants’ arguments as

to these counts. Accordingly, the Court DENIES Defendants’ motion

with respect this claim and ORDERS that Plaintiff file a notice of

voluntary dismissal with respect to Counts V and VII within seven (7)

days of the entry of this Order.

IV. Conclusion

Accordingly, for the reasons stated above, Defendants’ motion for

judgment on the pleadings (ECF No. 6) is GRANTED IN PART and

DENIED IN PART.

Specifically, as to Counts I (Unreasonable Search and Seizure) and

II (Excessive Force) against Defendants Bartynski, Holcomb and

Edwards in their individual capacities, the motion is DENIED, with the

exception that, to the extent Count II alleges a Fourteenth Amendment

violation, the motion is GRANTED, and that claim is DISMISSED.

As to the Monell claim alleged in Count III, against the City of

Highland Park, the Plaintiff has agreed to dismiss this claim, so it will

be DISMISSED WITHOUT PREJUDICE. Plaintiff is ORDERED to

file a notice of voluntary dismissal with respect to the claim described

above within seven (7) days within the entry of this Order.

The motion is GRANTED as to Count IV for False Arrest and

Imprisonment, Count V labeled Ethnic Intimidation, and Count VI

Assault and Battery, and those Counts are DISMISSED WITHOUT

PREJUDICE as against Defendant City of Highland Park. Defendant

City of Highland Park is therefore DISMISSED WITHOUT

PREJUDICE.

As to the individual claims under Count V (Ethnic Intimidation)

and Count VII (Gross Negligence), the Plaintiff has agreed to dismiss

those claims, so they will be DISMISSED WITHOUT PREJUDICE as

against Defendants Holcomb, Edwards, and Bartynski. Plaintiff is

ORDERED to file a notice of voluntary dismissal with respect to the

claims described above within seven (7) days within the entry of this

Order.

As to Plaintiff’s claims against Defendants Holcomb, Edwards, and

Bartynski for False Arrest and Imprisonment (Count IV), Intentional

Infliction of Emotional Distress (labeled as Count V), and Assault and

Battery (Count VI), Defendants did not move for judgment on the

pleadings as to these claims.

In summary, the remaining Counts in the Complaint are as follows:

Counts I (Unreasonable Search and Seizure) and II (Excessive Force)

under the Fourth Amendment only as to all individual Defendants;

Count IV (False Arrest and Imprisonment) against all individual

Defendants; Count V (Intentional Infliction of Emotional Distress)

against all individual defendants; and Count VI (Assault and Battery)

against all individual defendants.

SO ORDERED.

DATED: September 18, 2020.

BY THE COURT:

/s/Terrence G. Berg

TERRENCE G. BERG

United States District Judge