Spicer v. Michigan, State of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASON SPICER,

Case No. 2:19-cv-13718

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.

THE STATE OF MICHIGAN,

et al.,

Defendants.

/

OPINION AND ORDER DENYING

TROOPER CARROLL'S MOTION TO DISMISS OR,

ALTERNATIVELY, FOR SUMMARY JUDGMENT [34] AND

DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [37]

Plaintiff Jason Spicer sued several Defendants for civil rights violations. ECF

1. The Court dismissed all Defendants except Trooper Mark Carroll because Trooper

Carroll had not joined an earlier motion to dismiss. ECF 23. Still, the Court sua

sponte dismissed the equal protection and gross negligence claims against Trooper

Carroll. ECF 23, PgID 137–38. The only remaining claims are against Trooper Carroll

for excessive force under 42 U.S.C. § 1983, ECF 1, PgID 3–6, and assault and battery,

id. at 14–15.

The Court explained in an omnibus order that Trooper Carroll failed to timely

respond to the complaint due to (a) the COVID-19 pandemic and (b) Trooper Carroll's

arbitration between his union and employer. ECF 40, PgID 587–88. In the omnibus

order, the Court denied Plaintiff's motion for default judgment against Trooper

Carroll. Id. at 588–89. Although the Court did not explicitly set aside the default, the

Court's omnibus order implied that the default would be set aside. See id. at 588

("Trooper Carroll's default resulted not from willful misconduct, carelessness or

negligence, but from delayed mail, a global pandemic, and his good-faith belief that

nothing could be done until after completing his arbitration."); see also Fed. R. Civ. P.

55(c) ("The court may set aside an entry of default for good cause."). To be clear, the

Court will order the Clerk of the Court to set aside the default as to Trooper Carroll.

Because Trooper Carroll responded to the complaint with a motion to dismiss

or for summary judgment, ECF 34, the Court will address the pending motion.

Plaintiff responded twice to the motion. ECF 35; 36. Local Rule 7.1(c) allows a party

to file one response in opposition to a motion. "A party must obtain leave of the court

to file more than one response." E.D. Mich. L.R. 7.1(c)(3). Because Plaintiff did not

move for leave to file his second response, the Court will order the Clerk of the Court

to strike the second response, ECF 36.

Plaintiff later moved for summary judgment against Trooper Carroll as to

liability only. ECF 37. The parties fully briefed the motion. The Court reviewed the

briefs for the two motions and a hearing is unnecessary. See E.D. Mich. L.R. 7.1(f)(2).

For the reasons below, the Court will deny Trooper Carroll's motion to dismiss and

Plaintiff's summary judgment motion.

BACKGROUND1

In the early morning hours of December 28, 2017, Michigan State Police pulled

Plaintiff's car over for speeding and improperly changing lanes. ECF 1, PgID 2, 7.

Once Plaintiff stopped his car, Trooper Carroll "immediately approached Plaintiff's

vehicle, opened the driver side door, pulled Plaintiff's cane from the vehicle, then

pulled Plaintiff from the vehicle, and slammed his face to the ground." Id. at 2.

Trooper Carroll then slammed Plaintiff against the hood of the squad car. Id.

Plaintiff was later taken to Providence Hospital. Id. at 2–3. Apart from

suffering a chipped tooth, doctors diagnosed Plaintiff "with soft tissue contusion,

acute cervical (neck) sprain, lip laceration, and facial contusions." Id. After receiving

treatment, Plaintiff was booked at the Oakland County Jail. Id. Based on these

events, Plaintiff sued Trooper Carroll for excessive force and assault and battery. Id.

at 3–6, 14–15.

LEGAL STANDARD

I. Motion to Dismiss

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

1 Because the Court must view all facts in the light most favorable to the nonmoving

party, see Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008), the Court's recitation

does not constitute a finding or proof of any fact.

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

reasonable inference in the nonmoving party's favor. Bassett, 528 F.3d at 430.

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]' [the

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)). 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).

II. Summary Judgment

The Court must grant a motion for summary judgment "if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). A moving party must identify

specific portions of the record that "it believes demonstrate the absence of a genuine

issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the

moving party has met its burden, the non-moving party may not simply rest on the

pleadings but must present "specific facts showing that there is a genuine issue for

trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(emphasis omitted) (quoting Fed. R. Civ. P. 56(e)).

A fact is material if proof of that fact would establish or refute an essential

element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174

(6th Cir. 1984). A dispute over material facts is genuine "if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary

judgment, the Court must view the facts and draw all reasonable inferences "in the

light most favorable to the non-moving party." 60 Ivy St. Corp. v. Alexander, 822 F.2d

1432, 1435 (6th Cir. 1987) (citations omitted).

DISCUSSION

The Court will first address the procedural arguments that Plaintiff asserted

in the first response to the motion to dismiss. After, the Court will address whether

the Court may rely on the dashcam video to resolve the motion to dismiss. The Court

will then address the excessive force claim against Trooper Carroll followed by the

assault and battery claims. Last, the Court will address Plaintiff's summary

judgment motion.

I. Procedural Arguments

Plaintiff asserted two procedural arguments for why the Court should deny the

motion to dismiss. First, Plaintiff claimed that Trooper Carroll failed to seek

concurrence before filing the motion to dismiss and thus violated Local Rule 7.1(a).

ECF 35, PgID 349–50. Second, Plaintiff contended that Trooper Carroll never moved

to set aside the entry of default and thus Trooper Carroll could not move to dismiss

the complaint. ECF 35, PgID 350–53.

The Court will reject the first argument for two reasons. First, Trooper

Carroll's motion stated that he had "explained the nature of the motion and its legal

basis, but concurrence was denied." ECF 34, PgID 288. Plaintiff offered no evidence

besides merely alleging that Trooper Carroll "made no attempt to reach out to

Plaintiff." ECF 35, PgID 350. At any rate, Trooper Carroll's motion complied with

Local Rules by stating "the movant explained the nature of the motion" and that he

"did not obtain concurrence in the relief sought." E.D. Mich. L.R 7.1(a)(2)(A); see ECF

34, PgID 288.

Even if Plaintiff is correct that Trooper Carroll did not seek concurrence before

moving to dismiss, Plaintiff cannot show prejudice. Indeed, "the Sixth Circuit has

held that Rule 7.1(a) is largely an empty formality in the case of dispositive motions

since, if the other party agreed, the parties could simply stipulate to a dismissal."

Dorman Prods., Inc. v. Dayco Prods., LLC., 749 F. Supp. 2d 360, 637 (E.D. Mich. 2010)

(cleaned up) (quoting Walls v. Detroit, 993 F.2d 1548, 1993 WL 158498, at *4, n.2 (6th

Cir. 1993) (table)). And, as the Court's Practice Guidelines state, "[f]ailure to seek

concurrence or adhere to Local Rule 7.1(a) may result in the Court striking the

motion." (emphasis added). It follows that the Court need not strike the motion if

Trooper Carroll failed to seek concurrence. The Court will therefore reject Plaintiff's

request to deny the motion to dismiss under Local Rule 7.1(a).

The Court is also unpersuaded by Plaintiff's second procedural argument. The

Court already ruled that Trooper Carroll had good cause to set aside the entry of

default and deny the motion for default judgment. ECF 40. And it is irrelevant that

Trooper Carroll moved to dismiss the complaint before requesting that the Court set

aside the entry of default. United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705

F.2d 839, 844 (6th Cir. 1983) ("[A]n answer or other opposition to a motion for default

may be treated as a motion to set aside entry of default."). In sum, the Court rejects

the two procedural arguments for denying the motion to dismiss.

II. Dashcam Video

The Court has already reviewed the dashcam video of the traffic stop and found

that "the video does not 'so blatantly and conclusively contradict' the allegations in

the complaint." ECF 23, PgID 131 (quoting Osberry v. Slusher, 750 F. App'x 385, 390

(6th Cir. 2018)). For that reason, the Court will decline to rely on the dashcam video

to resolve the motion to dismiss. ECF 23, PgID 131. The Court will also decline to

convert the motion to dismiss into a summary judgment motion because the parties

have not exchanged discovery. Id. ("[T]he Court will decline to convert Defendants'

motion into a motion for summary judgment because no discovery has taken place.");

see Tucker v. Union of Needletrades, Indus., & Textile Emps., 407 F.3d 784, 788 (6th

Cir. 2005) (A summary judgment motion "may not be granted until a plaintiff has

had an opportunity for discovery.").

III. Excessive Force Claim

Trooper Carroll asserted a qualified immunity defense to the excessive force

claim. ECF 34, PgID 312–13. 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). 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))

(alterations 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).

Under the Graham factors, the Court cannot yet determine whether Trooper

Carroll used reasonable force. Based on the complaint's allegations, the first factor

favors Plaintiff because Trooper Carroll had allegedly pulled him over for minor

traffic infractions. ECF 1, PgID 2. The second factor also favors Plaintiff at this stage

because no allegations suggest that Plaintiff endangered the officers during the

traffic stop. The third factor likewise supports Plaintiff because the complaint alleged

that Plaintiff was sitting in his car when Trooper Carroll pulled him from the car and

body slammed him face first into the ground and then slammed him on the hood of

the patrol car. Id.

Based on the three Graham factors, the complaint plausibly alleged that body

slamming Plaintiff's face into the ground and slamming Plaintiff against the patrol

car was unreasonable. 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 has plausibly pleaded an excessive force claim, and

the Court will not dismiss the § 1983 claim against Trooper Carroll under the

qualified immunity defense.

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

Carroll'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). Trooper Carroll 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 Claim

"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 v. Bettendorf, 601 F.3d 640, 653 (6th Cir. 2010) (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).

Trooper Carroll asserted two arguments to dismiss the claim. First, he argued

his conduct was not assault and battery because "[p]olice officers may use reasonable

force when making an arrest." ECF 34, PgID 317 (citation omitted). Second, the Court

should grant him qualified immunity. ECF 34, PgID 318 ("He is thus entitled to the

protections of governmental immunity."). The Court will address each argument in

turn.

A police officer may use reasonable force to carry out a lawful arrest. Tope v.

Howe, 179 Mich. App 91, 106 (1989). But a police officer who uses excessive force may

be held liable for assault and battery. White v. City of Vassar, 157 Mich. App 282, 293

(1987). Because the Court cannot find, based on the complaint's allegations, whether

Trooper Carroll used reasonable force on Plaintiff, the Court must deny Trooper

Carroll's motion to dismiss.

As for the qualified immunity claim, under Mich. Comp. Laws § 691.1407(2),

Trooper Carroll is entitled to immunity for tort claims if he satisfies three elements.

First, he must have acted during his employment. Odom v. Wayne Cnty., 482 Mich.

459, 480 (2008). Second, he must have acted in good faith. Id. And third, his actions

must have been discretionary. Id. Although the Court must view the facts from

Trooper Carroll's perspective, Latits v. Phillips, 298 Mich. App. 109, 116 (2012), the

Court lacks facts to determine whether he acted in good faith. Without more facts,

the Court cannot foreclose the chance that Trooper Carroll'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 chance that the officer

acted maliciously). The Court will therefore deny the motion to dismiss. Trooper

Carroll may raise the qualified immunity defense in a summary judgment motion

after developing the record.

IV. Plaintiff's Summary Judgment Motion

The Court will deny the summary judgment motion as premature. "Before

ruling on summary judgment motions, a district judge must afford the parties

adequate time for discovery, in light of the circumstances of the case." Plott v. Gen.

Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1195 (6th Cir. 1995). Summary

judgment motions "filed before the close of discovery [are] often denied as premature"

based "on the [C]ourt's own initiative without an explicit request from the opposing

party." CLT Logistics v. River W. Brands, 777 F. Supp. 2d 1052, 1076 (E.D. Mich.

2011) (quoting Wells v. Corp. Accounts Receivable, 683 F. Supp. 2d 600, 602 (W.D.

Mich. 2010)).

Put simply, a non-movant must have some discovery before the Court may

grant summary judgment. White's Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229,

231 (6th Cir. 1994). Because Trooper Carroll has not had Court-approved discovery

time, the Court will, on its own initiative, deny the summary judgment motion as

premature. See CLT Logistics, 777 F. Supp. 2d at 1076. Plaintiff may refile a second

summary judgment motion after the discovery deadline. E.D. Mich. L.R. 7.1(b)(2).

CONCLUSION AND ORDER

The Court has denied both motions. The only remaining claims are the § 1983

excessive force claim and the assault and battery claims against Trooper Carroll. The

Court will therefore require Trooper Carroll to answer the remaining claims in the

complaint no later than July 28, 2021. After, the Court will hold a Rule 16 conference.

WHEREFORE, it is hereby ORDERED that Trooper Carroll's motion to

dismiss or for summary judgment [34] is DENIED.

IT IS FURTHER ORDERED that Plaintiff's motion for summary judgment

[37] is DENIED.

IT IS FURTHER ORDERED that the Clerk of the Court must SET ASIDE

the default as to Trooper Carroll.

IT IS FURTHER ORDERED that the Clerk of the Court must STRIKE ECF

36.

IT IS FURTHER ORDERED that Trooper Carroll must ANSWER the

remaining claims no later than July 28, 2021.

SO ORDERED.

s/ Stephen J. Murphy, III

STEPHEN J. MURPHY, III

United States District Judge

Dated: July 7, 2021

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

and/or counsel of record on July 7, 2021, by electronic and/or ordinary mail.

s/ David P. Parker

Case Manager