Parsons v. Ann Arbor, City of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DREW PARSONS,

Case No. 2:20-cv-10486

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.

CITY OF ANN ARBOR, et al.,

Defendants.

/

OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS' MOTION TO DISMISS [10]

Plaintiff Drew Parsons sued the City of Ann Arbor, its police department

("AAPD"), and several police officers. ECF 1. Plaintiff asserted 42 U.S.C. § 1983

claims against Defendants for excessive force in violation of his Fourth and

Fourteenth Amendment rights. Id. at 6–8. Plaintiff also asserted several state law

claims of assault and battery against Officers Kandt and Scott, id. at 9–10, gross

negligence and intentional infliction of emotional distress ("IIED") against Sergeant

Pulford, Officers Kandt, Scott, Shafer, and Chinn, id. at 10–13, and negligent

supervision and training against the City and AAPD, id. at 14–15. Defendants moved

to dismiss the complaint. ECF 10. In response, Plaintiff requested that the Court

sanction Defendants under Federal Rule of Civil Procedure 11. ECF 13, PgID 119–

20. The Court reviewed the briefs and finds that a hearing is unnecessary. See E.D.

Mich. L.R. 7.1(f). For the reasons below, the Court will grant in part and deny in part

the motion to dismiss and will deny the sanctions request.

BACKGROUND

One night, Plaintiff was at an Ann Arbor bar. ECF 1, PgID 3. Plaintiff claimed

that while he was inside the bar, "an altercation occurred and Plaintiff was

misidentified as one of the individuals involved in the altercation." Id. Two bouncers

then escorted Plaintiff out of the bar and Officer Kandt exited his patrol car and

approached Plaintiff. Id.

Officer Kandt then allegedly "grabbed Plaintiff by the arm[,] pulled him over

to the front [of] the police car" and told Plaintiff "to put his hands behind his back."

Id. Plaintiff allegedly did not resist Officer Kandt, but the officer grabbed him "and

forced him face-first onto the hood of the police car, trapping one of Plaintiff's arms

between his chest and the hood of the police car." Id. at 4. Then Plaintiff alleged that

Officer Kandt, "without hesitation, grabbed Plaintiff, picked him up, and body-

slammed him face-first down onto the pavement." Id. While Plaintiff was on the

ground, Officer Kandt called out that "he had 'one resisting.'" Id.

Shortly after the call, Officer "Scott arrived on scene[,]" "climbed on top of

Plaintiff and began assisting [Officer] Kandt in executing the 'arrest' of Plaintiff." Id.

Once the officers handcuffed Plaintiff, they lifted him "off of the ground and led him

to the back of the police car." Id. Eventually, Sergeant Pulford and Officers Shafer

and Chinn arrived on scene. Id.

As a result of the takedown, Plaintiff was "disoriented and bleeding profusely

from his face[.]" Id. at 5. Shortly after, an ambulance arrived on scene to treat

Plaintiff for his injuries and transport him to the hospital. Id.

Last, Plaintiff also alleged that the City and AAPD were "grossly negligent"

and had "official policies, practice[s], orders, directives, or customs, which tolerated,

authorized, and/or permitted insufficient supervision, training, placement, and

discipline of" the officers that caused Plaintiff's injuries. Id. at 6.

LEGAL STANDARD

The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to

allege facts "sufficient 'to raise a right to relief above the speculative level,' and to

'state a claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc.,

579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 570 (2007)). The Court views the complaint in the light most favorable to the

plaintiff, presumes the truth of all well-pleaded factual assertions, and draws every

reasonable inference in the nonmoving party's favor. Bassett v. Nat'l Collegiate

Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

But the Court will not presume the truth of legal conclusions in the complaint.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If "a cause of action fails as a matter of

law, regardless of whether the plaintiff's factual allegations are true or not," then the

Court must dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).

The Court may also rely on video evidence if the "video 'utterly discredit[s]'

[Plaintiff's] version of events and allows [the Court] to ignore the 'visible fiction' [of]

his complaint." Bailey v. City of Ann Arbor, 860 F.3d 382, 386 (6th Cir. 2017) (quoting

Scott v. Harris, 550 U.S. 372, 380–81 (2007)). But the Court cannot employ video

evidence if "the video captured only part of the incident or would distort [the Court's]

view of the events." Id. (citation omitted).

DISCUSSION

To support the motion to dismiss, Defendants attached videos recorded on the

officers' body cameras and on the dashboard cameras of the officers' patrol cars. ECF

11. The Court will first discuss whether the Court may rely on the videos to resolve

the motion. After, the Court will address the individual claims against the officers

and then the claims against the City and AAPD. Last, the Court will discuss

Plaintiff's request for sanctions.

I. Attached Videos

Defendants first contended that the Court should consider evidence from

outside the complaint to resolve the motion to dismiss, ECF 10, PgID 70–72, including

several videos that recorded the incident, ECF 11. Although the Court has reviewed

the videos, the Court will not rely on the videos because the events in the video do

not satisfy the high bar of "utterly discredit[ting]" Plaintiff's allegations. Bailey, 860

F.3d at 386 (quoting Scott, 550 U.S. at 380–81).

Two videos recorded the alleged events: Officer Kandt's body camera video and

the video from his patrol car's dashboard. Both videos show a very quick interaction

between Officer Kandt and Plaintiff that ends with Officer Kandt bringing Plaintiff

to the ground. There is a lot of yelling, no indication that Plaintiff was violent towards

Officer Kandt, and no indication that Plaintiff fled, see ECF 11, although the

argument that Plaintiff resisted the officer is certainly colorable.

The complaint alleged that Officer Kandt "body-slammed" Plaintiff while

Plaintiff was "attempting to comply with [Officer] Kandt's orders[.]" ECF 1, PgID 4.

An excessive force claim "depends on the facts and circumstances of each case viewed

from the perspective of a reasonable officer on the scene and not with 20/20

hindsight." Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007). Without more evidence

about the encounter, a reasonable jury could find that Plaintiff's excessive force claim

has merit. Thomas v. Noder-Love, 621 F. App'x 825, 830 (6th Cir. 2015). The videos

therefore do not "utterly discredit" Plaintiff's excessive force claim and the Court will

not consider the videos at the motion to dismiss stage. Bailey, 860 F.3d at 386

(quoting Scott, 550 U.S. at 380–81). The Court will now address the claims to dismiss

the complaint.

II. Section 1983 Claims Against Officers Shafer, Chinn, and Sergeant Pulford

For the § 1983 claims against Officers Shafer, Chinn, and Sergeant Pulford,

each officer asserted that the complaint fails to state a claim against them. ECF 10,

PgID 72–73. The complaint alleged that the three officers violated Plaintiff's right

against police use of excessive force. ECF 1, PgID 6–8.

"A plaintiff who claims that a defendant used excessive force must show that

the officer '(1) actively participated in the use of excessive force, (2) supervised the

officer who used excessive force, or (3) owed the victim a duty of protection against

the use of excessive force.'" Fazica v. Jordan, 926 F.3d 283, 289 (6th Cir. 2019)

(quoting Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)). Plaintiff's claims

against Officers Shafer, Chinn, and Sergeant Pulford stem from the officers' "duty to

protect Plaintiff from the use of excessive force[.]" ECF 13, PgID 110.

The Sixth Circuit "has consistently held that damage claims against

government officials arising from alleged violations of constitutional rights must

allege, with particularity, facts that demonstrate what each defendant did to violate

the asserted constitutional right." Lanman v. Hinson, 529 F.3d 673, 685 (6th Cir.

2008) (emphasis in original) (citing Terrance v. Northville Reg'l Psychiatric Hosp.,

286 F.3d 842 (6th Cir. 2002)). Because of that, the Court must "analyze separately

whether [Plaintiff] has stated a plausible constitutional violation by each individual

defendant, and [] cannot ascribe the acts of all Individual Defendants to each

individual defendant." Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 565 (6th

Cir. 2011) (citations omitted). The Court will sequentially analyze the claims against

Officer Shafer, Officer Chinn, and Sergeant Pulford.

A. Officer Shafer

The complaint alleged that Shafer "arrived on scene" after Officers Kandt and

Scott handcuffed Plaintiff and "lifted [him] off of the ground and led him to the back

of the police car." ECF 1, PgID 4. In other words, Officer Shafer arrived on scene after

the alleged excessive force occurred. The complaint made no other specific reference

to Officer Shafer. See ECF 1.

The Sixth Circuit has held that an "officer who fails to act to prevent the use

of excessive force may still be held liable" if two conditions are met. Fazica, 926 F.3d

at 290 (emphasis in original). First, "the officer observed or had reason to know that

excessive force would be or was being used, and [second] the officer had both the

opportunity and the means to prevent the harm from occurring." Id. (quoting Floyd

v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)). Put differently, "mere presence

at the scene . . . without a showing of direct responsibility for the action, will not

subject an officer to liability." Binay, 601 F.3d at 650 (quoting Ghandi v. Police Dep't

of the City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984)).

The § 1983 claim against Officer Shafer fails because Plaintiff alleged that

Officer Shafer arrived on scene after the alleged excessive force took place. Thus,

based on Plaintiff's own allegations, Officer Shafer did not plausibly have "the

opportunity [or] the means to prevent the [alleged excessive force] from occurring."

Floyd, 518 F.3d at 406. The § 1983 claim against Officer Shafer is therefore dismissed

for failure to state a claim.

B. Officer Chinn

For the same reasons that the Court dismissed the § 1983 claim against Officer

Shafer, the Court will dismiss the § 1983 claim against Officer Chinn for failure to

state a claim. The only action the complaint alleged by Officer Chinn was that he

arrived on scene after the alleged excessive force occurred. ECF 1, PgID 4. Like

Officer Schafer, it is implausible that Officer Chinn had "the opportunity [or] the

means to prevent the [alleged excessive force] from occurring." Floyd, 518 F.3d at 406.

C. Sergeant Pulford

Plaintiff also alleged that Sergeant Pulford arrived on scene after the alleged

excessive force occurred. ECF 1, PgID 4. For that reason, the Court will dismiss the

§ 1983 claim against Sergeant Pulford under the same standard that applied to

Officers Shafer and Chinn. Fazica, 926 F.3d at 290. Plaintiff has not plausibly alleged

that Sergeant Pulford "had reason to know that excessive force would be or was being

used" or that he "had both the opportunity [or] the means to prevent the [alleged

excessive force] from occurring." Id. (quoting Floyd, 518 F.3d at 406). The Court will

therefore dismiss the § 1983 claim against Sergeant Pulford for failure to state a

claim.

III. Section 1983 Claim Against Officers Kandt and Scott

For the § 1983 claims against Officers Kandt and Scott, both officers asserted

qualified immunity defenses. ECF 10, PgID 73–79. Qualified immunity "'shield[s]'

public officials from money-damages liability if 'their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.'" Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir. 2016)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

"To survive the motion to dismiss on qualified-immunity grounds, [P]laintiff

must allege facts that plausibly mak[e] out a claim that the defendant's conduct

violated a constitutional right that was clearly established law at the time, such that

a reasonable officer would have known that his conduct violated that right."

Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (quotation

omitted). "[P]laintiff also must allege with particularity facts that demonstrate what

each defendant did to violate the asserted constitutional right." Id. (quotation

omitted) (emphasis in original). And "[P]laintiff bears the burden of showing that an

officer is not entitled to the defense of qualified immunity." Id. (citation omitted).

"[T]he right to be free from the excessive use of force is a clearly established

Fourth Amendment right." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902

(6th Cir. 2004) (quoting Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001)). For

excessive force claims, "the question is whether the officers' actions [were] 'objectively

reasonable' in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation." King v. United States, 917 F.3d 409, 429–

30 (6th Cir. 2019) (quoting Graham v. Connor, 490 US. 386, 397 (6th Cir. 1989))

(alternations in original).

"[T]o determine whether the use of force in a particular situation was

reasonable, th[e] Court must look to the totality of the circumstances." Id. at 430

(citing Graham, 490 U.S. at 396). And for that assessment, the Court weighs the

"three [Graham] factors: (1) the severity of the crime at issue; (2) whether the suspect

posed an immediate threat to the safety of the officers or others; and (3) whether the

suspect was actively resisting arrest or attempting to evade arrest by flight." King,

917 F.3d at 430 (citation omitted). The Court will first consider the claim against

Officer Scott and then address the claim against Officer Kandt.

A. Officer Scott

The Court will dismiss the § 1983 claim against Officer Scott because Plaintiff

has not plausibly alleged facts to support a finding that Officer Scott's conduct

violated a constitutional right. For example, the complaint merely alleged that Officer

Scott "arrived on scene" after Officer Kandt "stat[ed] that he had 'one resisting'" and

then Officer Scott allegedly "climbed on top of Plaintiff and began assisting [Officer]

Kandt in executing the 'arrest' of Plaintiff." ECF 1, PgID 4. The officers then promptly

handcuffed Plaintiff and moved him to the patrol car until an ambulance arrived. Id.

at 4–5.

When viewing the allegations under the Graham factors, Officer Scott is

entitled to qualified immunity because Plaintiff did not plausibly plead a

constitutional violation. First, the complaint confirmed that Officer Scott "arrived on

scene" in response to Officer Kandt's call for back-up to Plaintiff resisting arrest. ECF

1, PgID 4. That allegation leads only to one plausible inference: Officer Scott did not

witness the initial interaction between Officer Kandt and Plaintiff. See id. Plaintiff

also failed to allege that Officer Scott's responsive conduct was unreasonable because

his conduct is "viewed from the perspective of a reasonable officer on the scene and

not with 20/20 hindsight." Fox, 489 F.3d at 236.

The complaint alleged that Officer Scott placed his body on top of Plaintiff—a

non-neutralized arrestee—because Officer Kandt told him that Plaintiff was resisting

arrest. ECF 1, PgID 4. But Officer Scott merely placing his body on top of Plaintiff is

not unreasonable.

For example, Plaintiff never alleged that Officer Scott inflicted gratuitous

violence during the arrest. See Morrison v. Bd. of Trs. of Green Tp., 583 F.3d 394, 407

(6th Cir. 2009) (citing Pigram ex rel. Pigram v. Chaudoin, 199 F. App'x. 509, 513 (6th

Cir. 2006) ("[A] slap to the face of a handcuffed suspect—even a verbally unruly

suspect—is not a reasonable means of achieving anything more than perhaps further

antagonizing or humiliating the suspect.")). Plaintiff also never alleged that Officer

Scott used "'substantial or significant pressure' that create[d] asphyxiating

conditions[.]" Martin v. City of Broadview Heights, 712 F.3d 951, 961 (6th Cir. 2013).

And Plaintiff never alleged that Officer Scott placed his body weight on him after

handcuffing or neutralizing Plaintiff. See Hopper v. Phil Plummer, 887 F.3d 744, 755

(6th Cir. 2018) ("[T]he prohibition against placing weight on [an arrestee's] body after

he was handcuffed [is] clearly established in the Sixth Circuit[.]") (quoting Martin,

712 F.3d at 961).

Indeed, the complaint alleged just the opposite. Once the officers handcuffed

Plaintiff, they then "lifted Plaintiff off of the ground and led him to the back of the

police car." ECF 1, PgID 4. Plaintiff thus failed to allege that Officer Scott used

"physical force on a citizen who ha[d] been arrested and restrained, who [was]

securely under the control of the police, and who [was] not attempting to escape."

Goodrich v. Everett, 193 F. App'x 551, 556 (6th Cir. 2006) (quotation omitted)

(collecting cases).

In short, Plaintiff alleged no facts to show that Officer Scott committed a

constitutional violation. See Bozung v. Rawson, 439 F. App'x 513, 521 (6th Cir. 2011)

(holding that an officer acted reasonably when he placed his knee on a non-

neutralized arrestee's back to handcuff the arrestee) (citations and quotations

omitted). The Court will therefore grant Officer Scott qualified immunity on the

§ 1983 claim.

B. Officer Kandt

The Court will not dismiss the § 1983 claim against Officer Kandt. The

complaint alleged that Officer Kandt saw two bouncers escorting Plaintiff out of a

bar. ECF 1, PgID 3. Officer Kandt then "grabbed Plaintiff by the arm and pulled him

over to the front the police car, instructing Plaintiff to . . . to put his hands behind his

back." Id. "[W]hile [Plaintiff was] attempting to be compliant . . . and without putting

up any resistance," Officer Kandt "grabbed Plaintiff and forced him face-first onto the

hood of the police car[.]" Id. at 3–4. And "without any hesitation, [Officer Kandt then]

grabbed Plaintiff, picked him up, and body-slammed him face first down onto the

pavement." Id. at 4.

Altogether, Plaintiff plausibly alleged an excessive force claim under the

Graham factors. First, based on the allegations in the complaint, it is unclear what

crime Officer Kandt thought Plaintiff committed. See ECF 1, PgID 3–4. Rather,

Plaintiff alleged that the bouncers had misidentified him and escorted him out of the

bar. Id. at 3. Thus, the first factor weighs in Plaintiff's favor. Second, based on the

allegations in the complaint, Plaintiff was not a threat to the officers or others

because the complaint never suggested that Plaintiff had been violent towards the

bouncers. See id. And third, the complaint alleged several times that Plaintiff was

complying with Officer Kandt's requests and not resisting arrest. Id. at 3–4.

Based on the totality of the circumstances, the complaint plausibly alleged that

"body slam[ing]" Plaintiff on the ground, "face-first[,]" was unreasonable. Id. at 4; see

Harris v. Langley, 647 F. App'x 585, 590 (6th Cir. 2016) (finding that the Fourth

Amendment clearly prohibits "unprovoked body slams from police officers"). What is

more, "slamming an arrestee into a vehicle constitutes excessive force when the

offense is non-violent, the arrestee posed no immediate safety threat, and the arrestee

had not attempted to escape and was not actively resisting." Miller v. Sanilac Cnty.,

606 F.3d 240, 254 (6th Cir. 2010) (citing Graham, 490 U.S. at 396). In all, Plaintiff

plausibly pleaded an excessive force claim, and the Court will not dismiss the § 1983

claim against Officer Kandt.

That said, the Court does not have enough of a factual record to resolve Officer

Kandt's qualified immunity claim at this time. See Hart v. Hillsdale Cnty., Mich., 973

F.3d 627, 635 (6th Cir. 2020) ("[I]t is often perilous to resolve a Rule 12(b)(6) motion

on qualified immunity grounds because development of the factual record is

frequently necessary to decide whether the official's actions violated clearly

established law.") (alterations in original) (quotation omitted). Officer Kandt may

therefore reassert his qualified immunity defense in a summary judgment motion.

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.") (internal marks and citations omitted).

IV. Assault and Battery Claims Against Officers Kandt and Scott

Plaintiff alleged that Officers Kandt and Scott committed assault and battery.

ECF 1, PgID 9–10. "Under Michigan law, an assault is defined as 'an attempt to

commit a battery or an unlawful act which places another in reasonable apprehension

of receiving an immediate battery.'" Binay, 601 F.3d at 653 (quoting Grawey v. Drury,

567 F.3d 302, 315 (6th Cir. 2009)). "A battery is defined as 'an unintentional,

unconsented and harmful or offensive touching of the person of another, or of

something closely connected with the person.'" Id. (quoting Grawey, 567 F.3d at 315).

Officers Kandt and Scott also asserted qualified immunity defenses to the

claims. ECF 10, PgID 80–82. Under Mich. Comp. Laws § 691.1407(2), the officers are

entitled to immunity for tort claims if they satisfy three elements. First, the officers

must act during their employment. Odom v. Wayne Cnty., 482 Mich. 459, 480 (2008).

Second, the officers must act in good faith. Id. And third, the officer's actions must

have been discretionary. Id.

The only factor in dispute here is the good faith factor. The test to measure

good faith "is subjective in nature." Id. at 482. Officers lack good faith when they act

with a "malicious intent, capricious action or corrupt conduct or willful and corrupt

misconduct[.]" Id. at 474 (internal citations and quotations omitted). Put differently,

Defendants "must establish that [they] acted without malice." Id. at 475. And

contrary to Defendants' position, ECF 10, PgID 81–82, "[t]he burden continues to fall

on the governmental employee to raise and prove his entitlement to immunity as an

affirmative defense." Odom, 482 Mich. at 479. The Court will first address the claims

against Officer Scott.

A. Officer Scott

The Court must view the facts "from the perspective of [the] defendant[.]"

Latits v. Phillips, 298 Mich. App. 109, 116 (2012). From that perspective, there is no

evidence that Officer Scott "acted in bad faith, much less that malice was a factor."

Estate of Hill by Hill v. Miracle, 853 F.3d 306, 317 (6th Cir. 2017). As explained above,

the complaint alleged that Officer Scott responded to Officer Kandt's call that

Plaintiff was resisting arrest. ECF 1, PgID, 4. When Officer Scott arrived on scene,

he used limited force on Plaintiff and once Plaintiff was handcuffed, Officer Scott

placed him in the patrol car until an ambulance arrived. Id. at 4–5. Because the

allegations in the complaint alleged only that Officer Scott "acted in an objectively

reasonable manner with the minimum force necessary to bring [Plaintiff] under

control," the Court will grant Officer Scott qualified immunity to the assault and

battery claims for failure to establish that Officer Scott acted in bad faith. Miracle,

853 F.3d at 318.

B. Officer Kandt

When viewing the allegations in the complaint from Officer Kandt's

perspective, Plaintiff has plausibly asserted that Officer Kandt acted with malice.

The Michigan Supreme Court defines "malicious intent" as "conduct or a failure to

act that was intended to harm the plaintiff . . . [or] that shows such indifference to

whether harm will result as to be equal to a willingness that harm will result." Odom,

482 Mich. at 475. The complaint alleged that Plaintiff was trying to cooperate with

Officer Kandt and was not resisting Officer Kandt's commands. ECF 1, PgID 3–4.

Despite the alleged cooperation, Officer Kandt allegedly threw Plaintiff to the ground.

Id.

Without more facts, the Court cannot foreclose the possibility that Officer

Kandt's behavior "show[ed] such indifference to whether harm [would] result as to be

equal to a willingness that harm [would] result." Odom, 482 Mich. at 475; see Brown

v. Lewis, 779 F.3d 401, 420–21 (6th Cir. 2015) (holding that an officer who threw a

plaintiff to the ground despite the plaintiff cooperating with their orders did not

foreclose the possibility that the officer acted maliciously). The Court will therefore

deny the motion to dismiss. Officer Kandt may raise the qualified immunity defense

in a summary judgment motion after developing the factual record.

V. Gross Negligence Claims Against the Officers

Plaintiff also alleged that the officers committed gross negligence under Mich.

Comp. Laws §§ 691.1407(2)(c) & (8)(a). ECF 1, PgID 10–12. But "gross negligence" "is

not an independent cause of action." Beltz v. Gribble, 641 F.3d 743, 756 (6th Cir.

2011); see also Brent v. Wayne Cnty. Dep't of Human Servs., 901 F.3d 656, 700–01

(6th Cir. 2018) ("Michigan's immunity statute does not, however, provide an

independent cause of action for 'gross negligence,' and plaintiffs may not bypass the

immunity statute by 'transforming intentional excessive force or battery claims into

negligence claims.'") (quotation omitted). The Court will therefore dismiss the gross

negligence claim against the officers for failure to state a claim.

VI. IIED Claims Against the Officers

Plaintiff also alleged an IIED claim against the officers. ECF 1, PgID 13. To

plead an IIED claim "under Michigan law, a plaintiff must show extreme and

outrageous conduct, intent or recklessness, causation, and severe emotional distress."

Brent, 901 F.3d at 678 (citing Jones v. Muskegon Cty., 625 F.3d 935, 948 (6th Cir.

2010)). "Such conduct must be so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious and

utterly intolerable in a civilized community." Id. (quoting Jones, 625 F.3d at 948).

That said, "[a] defendant with an intent to cause tortious or even criminal harm is

not enough, nor is an intent to inflict emotional distress, nor malice or conduct that

might entitle a plaintiff to punitive damages for another tort." McGrew v. Duncan,

333 F. Supp. 3d 730, 742 (E.D. Mich. 2018) (citing Polk v. Yellow Freight Sys., Inc.,

801 F.2d 190, 195 (6th Cir. 1986)). The Court will first address the IIED claims

against Officers Shafer, Chinn, and Sergeant Pulford, and then the Court will address

the claims against Officers Scott and Kandt.

A. Officers Shafer, Chinn, and Sergeant Pulford

The complaint specifically alleged that Officers Shafer and Chinn, and

Sergeant Pulford arrived on scene after the alleged excessive force occurred. ECF 1,

PgID 4. That bare allegation cannot establish an IIED claim because it lacks any

showing of extreme or outrageous conduct. See Brent, 901 F.3d at 678. As a result,

the Court will dismiss the IIED claim against Officers Shafer and Chinn, and

Sergeant Pulford for failure to state a claim.

B. Officer Scott

For Officer Scott, the Court will dismiss the IIED claim because Plaintiff has

not plausibly shown that Officer Scott acted in an extreme and outrageous manner.

For one, the complaint alleged that Officer Scott "arrived on scene" after Officer

Kandt "stat[ed] that he had 'one resisting.'" ECF 1, PgID 4. Officer Scott then

allegedly "climbed on top of Plaintiff and began assisting [Officer] Kandt in executing

the 'arrest' of Plaintiff." Id. "After handcuffing Plaintiff, Defendants Kandt and Scott

lifted Plaintiff off of the ground and led him to the back of the police car." Id. Plaintiff

remained in the car until an ambulance arrived. Id. at 5. That conduct alone can

hardly be called extreme and outrageous. See Roberts v. Auto-Owners Ins. Co., 422

Mich. 594, 603 (1985) (holding that the test for IIED is "one in which the recitation of

the facts to an average member of the community would arouse his resentment

against the actor, and lead him to exclaim, 'Outrageous!'"). Thus, the IIED claim

against Officer Scott is dismissed for failure to state a claim.

C. Officer Kandt

The Court will also dismiss the IIED claim against Officer Kandt. Plaintiff

alleged that Officer Kandt used excessive force to carry out an arrest. ECF 1, PgID

3–4. "[W]hen courts have analyzed IIED claims brought by plaintiffs against officers

based on conduct during the course of an arrest, the courts 'have not equated

excessive force with outrageous conduct.'" Avery v. Neverson, No. 18-11752, 2020 WL

3440576, at *3 (E.D. Mich. Apr. 3, 2020) (quoting Valdex v. United States, 58 F. Supp.

3d 795, 831 (W.D. Mich. 2014)). And courts throughout the Eastern District of

Michigan have interpreted Michigan law so that an officer's excessive force cannot

support an IIED claim. Henderson v. Jackson, No. 15-10807, 2016 WL 3125214, at

*12 (E.D. Mich. June 3, 2016) ("The plaintiff has presented ample evidence that [the

defendant] intended to cause physical injury upon [the plaintiff], but there is no

evidence that the defendant intended to inflict emotional trauma." "The plaintiff has

not cited a single case in which a police officer's excessive force—even the use of

deadly force—has been found to support an IIED claim. In fact, Michigan law

suggests the contrary.") (emphasis in original) (citation omitted).

What is more, Plaintiff asserted no allegations beyond mere conclusory

statements that Officer Kandt intended to cause emotional distress. See ECF 1. Based

on the complaint's allegations and Michigan law, the Court cannot infer that Officer

Kandt plausibly intended to cause emotional injury to Plaintiff. See Fleming v.

Scruggs, 465 F. Supp. 3d 720, 748 (E.D. Mich. 2020) (granting summary judgment

because no evidence showed that the defendant intentionally caused emotional

distress). In all, the Court will dismiss the IIED claim against Officer Kandt for

failure to state a claim.

VII. Claims Against the AAPD

The Court will dismiss the claims against AAPD because it is not a proper

Defendant. Under Michigan Law, municipal police departments are "subsumed"

within a municipality "as a municipal entity" and therefore cannot be "included as a

separate defendant[.]" Boykin v. Van Buren Tp., 479 F.3d 444, 450 (6th Cir. 2007)

(citing Laise v. City of Utica, 970 F. Supp. 605, 609 (E.D. Mich. 1997)).

VIII. Section 1983 Claim Against the City

For the City to be liable under § 1983, Plaintiff "must establish that a

governmental policy or custom caused [his] alleged injury." Sova v. City of Mt.

Pleasant, 142 F.3d 898, 904 (6th Cir. 1998) (citing Monell v. Dept. of Soc. Servs. of

N.Y.C., 436 U.S. 658, 690–91 (1979)). "This means that [P]laintiff must show a direct

causal link between the policy and the alleged constitutional violation such that the

[municipal policy] can be deemed the 'moving force' behind the violation." Bickerstaff

v. Lucarelli, 830 F.3d 388, 402 (6th Cir. 2016) (alteration in original).

But Plaintiff inadequately alleged the elements of municipal liability. The

complaint included only "facts that are merely consistent with a defendant's liability."

Iqbal, 556 U.S. at 678 (quotations omitted). For example, Plaintiff alleged that

"Defendant[] City [has], with deliberate indifference to Plaintiff's rights and the

rights of persons with whom members of [AAPD] come into contact, caused Plaintiff

to be deprived of his [c]onstitutional rights under the Fourth and Fourteenth

Amendments[.]" ECF 1, PgID 8. Plaintiff also alleged that "Defendant[] City [has], as

a matter of custom, policy and/or practice, failed to adequately screen, train,

supervise, discipline, transfer, counsel or otherwise direct or control police officers

concerning the rights of citizens with whom the police come into contact, including

Plaintiff . . . ." Id. at 8–9. And yet those allegations are all legal conclusions.

Simply put, Plaintiff asserted no facts against the City beyond the single

instance of Officer Kandt's alleged misconduct. See ECF 1. In other words, the

complaint showed no evidence of a pattern or practice of deliberate indifference. One

instance alone cannot establish that the City had a custom of deliberate indifference

to Plaintiff's constitutional rights. Griffith v. Franklin Cnty., Ky., 975 F.3d 554, 583

(6th Cir. 2020) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 433 (6th Cir.

2005)) ("[Plaintiff] cannot rely solely on a single instance to infer a policy of deliberate

indifference.").

Because Plaintiff failed to plead any allegations beyond legal conclusions and

one instance of alleged misconduct, the Monell claim fails. See Bright v. Gallia Cnty.,

Ohio, 753 F.3d 639, 652 (6th Cir. 2014). The Court will therefore dismiss the § 1983

claims against the City for failure to state a claim.

IX. Negligent Supervision and Training Against the City

In Michigan, "[a] governmental agency is immune from tort liability if the

governmental agency is engaged in the exercise or discharge of a governmental

function." Mack v. City of Detroit, 467 Mich. 186, 197–98 (2002) (citing Mich. Comp.

Laws § 691.1407(1)). To that end, "[i]t is well established in Michigan that the

management, operation, and control of a police department is a governmental

function." Id. at 204 (citations omitted). And here, "Plaintiff's claims regarding the

police department all involve decisions that are part and parcel of the department's

discharge of governmental functions." Id.; see ECF 1, PgID 14 (explaining that the

police department must "exercise proper care in adequately hiring, screening,

training, supervising, disciplining, transferring, or otherwise directing or controlling

their police officers").

"If Plaintiff wants to avoid governmental immunity, he must plead specific

facts for why it does not apply." Marshall v. Wayne Cnty., No. 2:19-12515, 2020 WL

5505382, at *5 (E.D. Mich. Sept. 11, 2020) (Murphy, J.) (citations omitted). Plaintiff

suggested that immunity does not apply because the alleged conduct amounted "to

gross negligence[,]" which "is an exception to governmental immunity." ECF 1, PgID

15. But no such exception exists.

For one, the Government Tort Liability Act's ("GTLA's") gross negligence

exception applies only to an "officer[,]" "employee[,]" or "volunteer acting on behalf of

a governmental agency[.]" Mich. Comp. Laws § 691.1407(2)(c). The plain text of the

GTLA states that "a governmental agency is immune from tort liability if the

governmental agency is engaged in the exercise or discharge of a governmental

function." § 671.1407(1).

Plaintiff reasoned that "[t]here are other areas outside the GTLA where the

[Michigan] Legislature has allowed specific actions against the government to stand,

such as the Civil Rights Act and liability pursuant to 42 U.S.C. § 1983." ECF 13, PgID

119 (citations omitted). But those exceptions still do not save Plaintiff's claims

because Plaintiff is not suing under the Elliott-Larsen Civil Rights Act and the Court

already dismissed the Monell claim. See Chambers v. City of Detroit, 786 F. Supp. 2d

1253, 1271 (E.D. Mich. 2011) (noting that there are few exceptions "outside of the

GTLA" where "specific actions against the government [] may go forward"). Without

specific facts for why governmental immunity does not apply, the City has immunity

under the GTLA. The Court will therefore dismiss the negligent supervision and

training claims against the City.

X. Request for Rule 11 Sanctions

Under Rule 11(b), when an attorney signs a pleading, he or she is certifying to

the Court that the pleading is "not being presented for any improper purpose, such

as to . . . cause unnecessary delay[.]" Fed. R. Civ. P. 11(b)(1). When the Court

determines that a party has violated Rule 11(b), it "may impose an appropriate

sanction" on the party. Fed. R. Civ. P. 11(c)(1) (emphasis added). But when a party

moves for Rule 11 sanctions, the rule itself sets out three steps the party must follow.

First, "[a] motion for sanctions must be made separately from any other

motion[.]" Fed. R. Civ. P. 11(c)(2). Second, that motion "must describe the specific

conduct that allegedly violates Rule 11(b)." Id. And third, the party must follow the

so-called safe-harbor requirement. Id. The safe-harbor provision requires that a party

must formally serve the sanctions motion on the opposing party and then wait

twenty-one days to file the motion with the Court. Id. "Failure to comply with the

safe-harbor provision precludes imposing sanctions on the party's motion." Penn, LLC

v. Prosper Bus. Dev. Corp., 773 F.3d 764, 767 (6th Cir. 2014) (citations omitted).

Plaintiff did not follow the steps of Rule 11(c). Plaintiff filed no separate

request for sanctions. ECF 13, PgID 119–20. And Plaintiff offered no evidence that

he adhered to the safe-harbor provision. Id.; see also Fed. R. Civ. P. 11(c)(2). Because

Plaintiff failed to follow the proper procedures, the Court will deny the request to

impose sanctions.

CONCLUSION AND ORDER

In sum, the Court grants in part and denies in part the motion to dismiss. ECF

10. All claims against Sergeant Pulford, Officer Chinn, and Officer Schafer are

dismissed for failure to state a claim. The IIED and gross negligence claims against

all officers are dismissed for failure to state a claim. Officer Scott is entitled to

qualified immunity under the § 1983 claim and the assault and battery claims. The

claims against AAPD are dismissed for failure to state a claim. The City is entitled

to GTLA immunity on the negligent supervision and training claim. The § 1983 claim

against the City is dismissed for failure to state a claim.

The only remaining claims are the § 1983 excessive force claim and the assault

and battery claims against Officer Kandt. The Court will require Officer Kandt to

answer the complaint no later than March 24, 2021. And finally, the Court will deny

Plaintiff's request for Rule 11 sanctions.

WHEREFORE, it is hereby ORDERED that the motion to dismiss [10] is

GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that the claims against Officers Chinn, Schafer

Scott, Sergeant Pulford, City of Ann Arbor, and the Ann Arbor Police Department are

DISMISSED.

IT IS FURTHER ORDERED that the IIED and gross negligence claims

against Officer Kandt are DISMISSED.

IT IS FURTHER ORDERED that Officer Kandt must ANSWER the

complaint no later than March 24, 2021.

IT IS FURTHER ORDERED that Plaintiff's request for Rule 11 sanctions is

DENIED.

SO ORDERED.

s/ Stephen J. Murphy, III

STEPHEN J. MURPHY, III

United States District Judge

Dated: March 2, 2021

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on March 2, 2021, by electronic and/or ordinary mail.

s/ David P. Parker

Case Manager