# Niewolak v. CITY OF HIGHLAND PARK, MI

> District Court, E.D. Michigan · September 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10214792

## Case

- **Court:** District Court, E.D. Michigan
- **Decided:** September 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10214792

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10214792. Public record. Not legal advice.