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,

vs. ORDER GRANTING IN PART,

DENYING IN PART

PLAINTIFF’S MOTION FOR

SGT. KEATH BARTYNSKY, SGT. PARTIAL SUMMARY

HEATHER HOLCOMB, and LT. JUDGMENT

EDWARDS, in their individual and

AND

official capacities,

GRANTING IN PART,

Defendants.

DENYING IN PART

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

This matter is before the Court on Defendants Sergeant Keath

Bartynski1, Sergeant Heather Holcomb, and Lieutenant Edwards’s

(together “Defendant Officers”), Motion for Summary Judgment. ECF

No. 30. In response, Plaintiff Michael Niewolak has cross moved for

partial Summary Judgment. ECF No. 33. For the reasons stated herein,

1 Although the Complaint refers to Defendant Bartynski as “Bartynsky,”

Defendants use the spelling “Bartynski.” Defendants are in the best

position to know the correct spelling of this name, so the Court will use

that spelling. Plaintiff is directed to verify the correct spelling of

Bartynski’s name and, if necessary, to amend the Complaint to ensure

that Defendant Bartynski’s name is spelled correctly, no later than 10

(ten) days after the date of this Order.

the Court will GRANT IN PART and DENY IN PART Defendants’

motion for summary judgment. The Court will also GRANT IN PART,

and DENY IN PART Plaintiff’s motion for partial summary judgment.

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 drove

up to the gate and prevented it from being closed. Bartynski then entered

the parking lot, chased Niewolak, grabbed him, and arrested him without

probable cause. ECF No. 1, PageID.3-4. Niewolak alleges that Bartynski

accosted 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.

Niewolak also contends that Holcomb and Edwards also “put their

hands on him and refused to loosen the handcuffs although he informed

each and every one of them that the handcuffs were too tight,” resulting

in “abrasions and scratches.” Id. Niewolak contends that all three

Defendant Officers then arrested him without any cause and transported

him to the Highland Park jail where he was incarcerated without

probable cause. Id. However, all charges against Niewolak were dropped.

Accordingly, Niewolak argues that the Defendant Officers “knew that

[he] had not committed any crime and knew they had no justification to

arrest [him] 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. And finally, Niewolak alleges that the Defendant Officers

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

Niewolak brought eight claims against Defendants.2 He raises two

Counts for violating his Fourth Amendment right against unreasonable

seizure (Count I) and against excessive force (Count II) under 42 U.S.C

§1983, and a Monell claim against Highland Park for the same

constitutional violations (Count III). Plaintiff further brings state law

claims of false arrest and false imprisonment, assault and battery,

intentional infliction of emotional distress, and gross negligence against

the individual police officers. (Counts IV-VII). Defendants moved for

judgment on the pleadings on some of Plaintiff’s claims (ECF No. 6),

which this Court granted in part and denied in part. ECF No. 14. Count

III, the Monell claim, was dismissed. Counts IV, V (the first Count V, for

Ethnic Intimidation), and Count VI were also dismissed against

Highland Park. Plaintiff stipulated to the dismissal of the first Count V

(Ethnic Intimidation) and Count VII (Gross Negligence) against the

2 The Complaint has two “Count V’s”, so that although the last-listed

claim is Count VII, there are actually eight claims.

individual defendants. The remaining claims against the individual

defendants are Count I (unreasonable search and seizure) and Count II

(excessive force); Count IV (false arrest and false imprisonment); Count

V (the second Count V, for intentional infliction of emotional distress);

and Count VI (assault and battery). Defendants now move for summary

judgment on the remaining claims and Plaintiff has cross-moved for

partial summary judgment against Defendant Bartynski on Count I

(unreasonable search and seizure), Count II (excessive force), Count IV

(false arrest and imprisonment), and Count VI (assault and battery).

II. LEGAL STANDARD

“Summary judgment is appropriate if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with any

affidavits, show that there is no genuine issue as to any material fact

such that the movant is entitled to a judgment as a matter of law.”

Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013);

see also Fed. R. Civ. P. 56(a). A fact is material only if it might affect the

outcome of the case under the governing law. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

On a motion for summary judgment, the Court must view the

evidence, and any reasonable inferences drawn from the evidence, in the

light most favorable to the non-moving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted);

Redding v. St. Eward, 241 F.3d 530, 531 (6th Cir. 2001).

The moving party has the initial burden of demonstrating an

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). If the moving party carries this burden, the party

opposing the motion “must come forward with specific facts showing that

there is a genuine issue for trial.” Matsushita, 475 U.S. at 587.

According to the qualified immunity doctrine, the non-moving party

also has the burden of proving that the right allegedly violated was

clearly established at the time of the incident in question. See Everson v.

Leis, 556 F.3d 484, 494 (6th Cir. 2009). The trial court is not required to

“search the entire record to establish that it is bereft of a genuine issue

of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80

(6th Cir. 1989). Rather, the “nonmoving party has an affirmative duty to

direct the court's attention to those specific portions of the record upon

which it seeks to rely to create a genuine issue of material fact.” In re

Morris, 260 F.3d 654, 655 (6th Cir. 2001). The Court must then determine

whether the evidence presents a sufficient factual disagreement to

require submission of the challenged claims to the trier of fact or whether

the moving party must prevail as a matter of law. See Anderson, 477 U.S.

at 252. Ordinarily, when analyzing a motion for summary judgment, the

evidence is construed in favor of the non-moving party. The Supreme

Court has ruled, however, that when the parties disagree on the nature

of the underlying events and there is a physical record which contradicts

the Plaintiff’s version, the court should base its ruling on the record. Scott

v. Harris, 550 U.S. 372 (2007).

III. DISCUSSION

A. Qualified Immunity

Defendants assert they are entitled to qualified immunity for each

federal claim brought by Plaintiff. Qualified immunity shields law

enforcement officers from civil liability unless the officers (1) violated a

statutory or constitutional right and (2) the unlawfulness of their conduct

was clearly established at the time. Maben v. Thelen, 887 F.3d 252, 269

(6th Cir. 2018). (citing District of Columbia v. Wesby, ––– U.S. ––––, 138

S. Ct. 577, 589, 199 L.Ed.2d 453 (2018)).

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.” Kent v. Oakland Cty., 810 F.3d 384, 390 (6th

Cir. 2016) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To

succeed on a Qualified Immunity defense, Defendants must show that

both prongs are met here.

“Clearly established” means that the law is so clear at the time of

the incident that every reasonable officer would understand the

unlawfulness of his conduct.” Howse v. Hodous, 953 F.3d 402, 407 (6th

Cir. 2020) (citing Wesby, 138 S. Ct. at 589.) “That’s a deferential rule. And

for good reason: officers often find themselves in positions where they

must make split-second decisions in dangerous situations.” Id.

In a 2021 Interlocutory Appeal Order, the Sixth Circuit reaffirmed

this Court’s denial of Defendant Holcomb and Edwards’ move for

qualified immunity in Defendants’ motion for judgment on the pleadings.

Niewolak v. City of Highland Park, Michigan, 844 F. App’x 861 (6th Cir.

2021); ECF No. 23. The Court found that Niewolak had plausibly alleged

violations of clearly established constitutional rights: 1) freedom from

arrest in the absence of probable cause and 2) freedom from excessively

forceful or unduly tight handcuffing. Id. at 862-63 (citing Courtright v.

City of Battle Creek, 839 F.3d 513, 518-20 (6th Cir. 2016). Accordingly, if

it is determined there is a genuine issue of material fact regarding either

claim, qualified immunity must be denied. The Court will assess whether

qualified immunity applies to each claim individually.

B. Unreasonable Search and Seizure (Count I)

Niewolak contends that because Bartynski did not have reasonable

suspicion to search the premises or interrogate the owner of Great Lakes

Auto, he had a right to walk away. He alleges that Defendant Officers

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

crime had been committed, unreasonably searched, seized and detained

[him].” ECF No. 1, PageID.6. As evidence that probable cause did not

exist for the arrest, he points out that all charges against him were

dropped. Id. at PageID.4-5. Finally, he claims that the officers threatened

to charge him with a felony if he sued them. Id. at PageID.5.

The Fourth Amendment of the United States Constitution provides

that “the right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated.” Terry v. Ohio, 392 U.S. 1, 8 (1968) (quoting U.S. Const. Amend.

IV). A warrantless arrest, like the one at issue here, is reasonable under

the Fourth Amendment if supported by “probable cause to believe that a

criminal offense has been or is being committed.” Brooks v. Rothe, 577

F.3d 701, 706 (6th Cir. 2009) (quoting Devenpeck v. Alford, 543 U.S. 146,

152 (2004)). An officer has probable cause “only when he discovers

reasonably reliable information” that an individual has committed or is

committing a crime. Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.

2000). An arrest violates a person’s constitutional right if there was no

probable cause for the arrest. Brooks, 577 F.3d at 706. “There are,

however, certain narrowly drawn exceptions to the probable cause

requirement,” such as the Terry stop, which allows a police officer who

“possesses a reasonable and articulable suspicion that a person has been

involved in criminal activity,” to approach and temporarily detain a

person for the purpose of investigating possible criminal behavior

without probable cause. United States v. Bentley, 29 F.3d 1073, 1075 (6th

Cir. 1994) (citing Terry, 392 U.S. 1); Barrera v. City of Mount Pleasant,

12 F.4th 617, 622 (6th Cir. 2021).

In the Sixth Circuit it is settled that a Terry Stop suspect does not

have a Fourth Amendment right to refuse to comply with an officer’s

request when the request is “reasonably related in scope to the

circumstances which justified the stop.” Barrera, 12 F.4th at 622 (citing

Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty., 542 U.S. 177,

189 (2004)).

Where an officer has a reasonable suspicion to detain a suspect and

the suspect fails to comply, or refuses to provide identification, the

suspect may be arrested and indicted for criminal charges. Hiibel, 542

U.S. at 187. Accordingly, the success of Niewolak’s claim that Bartynski

unlawfully arrested him without probable cause for refusing to identify

himself, turns on the question of when, and whether, Bartynski had

reasonable suspicion to believe that Niewolak was involved in criminal

activity when he ordered him to stop and attempted to detain him.

The encounter between Niewolak and Bartynski evolved in a series

of escalating contacts. First, Bartynski entered the property, pursued

Niewolak, and sought to detain and question him. Such a stop needed to

be based on reasonable suspicion. If it was, and Niewolak refused to

comply and ran, then Bartynski’s use of force to subdue him was lawful

and Niewolak’s conduct could provide probable cause to arrest if he

resisted in an officer.

However, if Bartynski lacked reasonable suspicion to order

Niewolak to stop and answer questions, then he was not justified in using

force to give chase, taking hold of him, and placing him under arrest, even

if Niewolak tried to walk away, and refused to produce his identification.

For the reasons explained, this Court finds that reasonable

suspicion did not exist, and therefore Niewolak’s arrest was not based on

probable cause, and indisputably unlawful.

a. Reasonable suspicion did not exist to question

Niewolak.

Bartynski claims he received an uncorroborated anonymous tip

that the business where Niewolak worked was illegally growing

marijuana. Although Defendants are correct that in Terry, the Supreme

Court allowed police officers to stop a suspect and investigate possible

criminal activity based on an informant’s tip, the Supreme Court has

made clear that an anonymous tip alone without corroboration does not

satisfy the “indicia of reliability” required to meet the reasonable

suspicion threshold for an investigatory stop. Alabama v. White, 496

U.S., 327-329, Florida v. J.L., 529 U.S. 266, 270 (2000); see also Williams

v. Maurer, 9 F.4th 416, 432–33 (6th Cir. 2021).3

3 This standard is particularly pertinent to uphold in this case, where it

appears Defendant Bartynski may not have even been at the correct

location about which he claims to have received the anonymous tip.

According to the Investigative Report, Bartynski received an anonymous

tip about a marijuana grow plant located at 137 Victor Street. However,

the location of Great Lakes Auto, where Niewolak worked, is listed as

138 Manchester Street on Google. Despite this discrepancy, Plaintiff

concedes that Bartynski arrived at 137 Victor Street the day of the

incident.

Nor does Niewolak’s conduct after the fact, give rise to reasonable

suspicion. The Sixth Circuit has clearly established that “police may not

detain pedestrians to obtain their identity without ‘specific, objective

facts establishing reasonable suspicion [of] criminal activity.’” Hiibel at

184 (citing Brown v. Texas, 443 U.S. 47, 51–52 (1979)). Even in high

crime areas, a person has the right to refuse to answer a police officer’s

questions or reveal his name in the absence of reasonable suspicion of

criminal activity. United States v. Beauchamp, 659 F.3d 560 (6th Cir.

2011); Family Serv. Ass’n ex rel. Coil v. Wells Twp., 783 F.3d 600 (6th Cir.

2015); Wilkerson v. City of Akron, 906 F.3d 477 (6th Cir. 2018); Jones v.

City of Elyria, 947 F.3d 905 (6th Cir. 2020).

In Family Serv. Ass’n, a police officer stopped and asked two young

men sitting on the side of the road for their identification. The young men

refused and walked away. The Sixth Circuit found the officer had no

“reasonable suspicion” to stop them:

Walking away from an officer without answering his

questions or revealing one’s name does not establish

reasonable suspicion for a Terry stop. And an individual's late-

night presence in a high-crime area by itself does not establish

reasonable suspicion of anything other than the probability

that the individual lives in a high-crime area. That leaves the

absence of a nearby car or any open store or business that

might explain the men’s presence. But walking without

evident purpose remains an innocent, even enjoyable, activity

in this country, whether in a high-crime area or a suburban

park. Papachristou v. City of Jacksonville, 405 U.S. 156, 163–

64, 171, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Even after

considering “the whole picture,” Navarette v. California, –––

U.S. ––––, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014)

(quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct.

690, 66 L.Ed.2d 621 (1981)), no reasonable officer could find a

basis to stop [the man], let alone probable cause to arrest him

on this record. See United States v. Johnson, 620 F.3d 685,

692–95 (6th Cir.2010).

Family Serv. Ass’n, 783 F.3d at 604-05.

On the facts before the Court, Sgt. Bartynski had an anonymous tip

that an illegal marijuana grow operation was going on at 137 Victor

Street. On December 5, 2017, the officer arrived at the parking lot of

Great Lakes Auto at approximately 1:00 p.m. where Mr. Niewolak was

working at his place of employment, just as Niewolak was closing the

gate. ECF No. 33, PageID.391; ECF No.33-5. Niewolak alleges that

rather than identifying himself as an officer, Bartynski drove his vehicle

up to the gate to prevent it from closing, alighted his vehicle, and hustled

toward Niewolak. The facts available to Bartynski at that moment did

not provide reasonable suspicion that Niewolak was involved in criminal

activity. The officer had no legal basis to conduct a Terry stop of

Niewolak. Though Bartynski could reasonably have initiated a voluntary

police-citizen contact to ask Plaintiff questions, nothing required

Niewolak to stop and answer them.

Because these facts show that Bartynski did not have reasonable

suspicion from the outset to detain Niewolak or require him to answer

questions, Bartynski’s continued pursuit of Niewolak when he attempted

to walk away was not reasonable or justified. Lawfully at his place of

employment, on private property, Niewolak had no legal obligation to

comply with Bartynski’s commands to stop or answer questions.

i. Defendant Bartynski is not entitled to qualified

immunity.

A review of the surveillance camera video reveals that Niewolak

was at his place of employment, attempting to close the gate of the

business when Bartynski abruptly drove up and butted the front of his

car against the gate, preventing Niewolak from closing the gate. Video

Exhibit, ECF No. 30-3. In fact, Bartynski parked so close to the gate that

it appears when he got out of the car, he asked Plaintiff to open the gate

so that he could walk through. When Niewolak refused, evidenced from

the fact Niewolak kept his hand on the gate, Bartynski proceeded to walk

over the hood of his car and enter the gate of his own accord. Upon seeing

Bartynski vault over the front of his car, Niewolak turned his back to

Bartynski and walked toward the building. Bartynski followed after him

and although the video has no sound, he appears to be speaking to

Niewolak. When this failed to stop Niewolak from walking away,

Bartynski charged after him from behind and tackled Niewolak to the

ground. Once Niewolak was subdued, Bartynski allowed him to get up

and it appears as if Bartynski was motioning for Niewolak to stand

against the wall of the building. Instead, Niewolak continued to walk off.

Bartynski then chases Niewolak for a second time around the corner of

the building and a second camera captures Bartynski tackling Niewolak

to the ground and a scuffle ensues. As Bartynski is holding Niewolak

face-down on the pavement, but is unable to hand-cuff him or completely

stop him from struggling, two black male officers arrive at the scene and

assist Bartynski in effectuating an arrest—handcuffing Niewolak as he

lays on his stomach with his hands on his back.

According to Niewolak’s deposition testimony, he was in the process

of closing the gate when Bartynski arrived and indicated he wanted to

enter the property; he told him no. ECF No. 30-2, PageID.235; 13-14.

Niewolak alleges that Bartynski never indicated why he was there or

that he was a police officer until he had tackled him on the ground. While

on the ground during the first tackle, Niewolak informed Bartynski that

he was an employee at Great Lakes Auto, at which point Niewolak

believes Bartynski recognized that he was in pursuit of the wrong person

and allowed him to get up. As Niewolak walked away, he yelled profanity

at Bartynski, which he believes incited Bartynski to pursue and tackle

him again. Id. at PageID.237-240.

In contrast, Bartynski testified that he arrived in plain clothes in

an unmarked police car and immediately jumped out and approached the

gate which Niewolak had attempted to close. ECF No. 30-4, PageID.314,

316, 329-330. Bartynski and Niewolak did not know each other prior to

the altercation but Bartynski claims he was identifiable as a police

because he was wearing a jacket with an embroidered patch on his chest

and his badge attached to his belt. Id. at PageID.314. He claims he

initiated his red and blue police lights when he arrived on the scene,

(which the video footage does not capture), but exited the vehicle when

he saw Niewolak continue to close the gate. Id. at PageID.324. He alleges

he asked Niewolak to identify himself, and that failure to do so was an

arrestable offense, but Niewolak continued to walk away. Id. at

PageID.329-330. Bartynski then pursued Niewolak and in attempt to

grab him, claims they both fell to the ground, at which point Niewolak

identified himself as a mechanic at a nearby business. Once Bartynski

realized Niewolak was an employee at Great Lakes Auto, he released

him, but alleges Niewolak swung at him, resulting in the second tackle.

Id. at PageID.331-32. Furthermore, Bartynski concedes that the

business was on private property and he had not been invited on the

property.

In considering whether Bartynski should be entitled to qualified

immunity, as stated, the Court must ask whether (1) a violation of

Constitutional rights took place, and (2) whether that right was “clearly

established.” While the right to be free from arrest without probable

cause is unquestionably “clearly established,” the Supreme Court has

cautioned against defining a right at a high level of generality. See

Anderson v. Creighton, 483 U.S. 635, 639 (1987). In the context of an

arrest alleged to be unsupported by probable cause, the ultimate question

is whether a “reasonable police officer in the same circumstances and

with the same knowledge could have reasonably believed that probable

cause existed in light of well-established law.” McLeod v. Bender, No.

2:13-CV-12878, 2015 WL 1470071, at *9 (E.D. Mich. Mar. 30, 2015)

(Michelson, J.) (citing Fowler v. Burns, 447 F. App’x 659, 661 (6th

Cir.2011)).

It is clearly established that a Terry stop must be based on

reasonable suspicion of criminal activity. Reasonable suspicion requires

more than an anonymous tip from an unsubstantiated source and cannot

be established merely because a citizen fails to respond to an officer and

walks away. Niewolak had done nothing to suggest he was involved in

criminal activity. The anonymous tip Bartynski claims he received from

an unsubstantiated source related to the possibility of an illegal

marijuana grow operation does not suffice. In this case, Niewolak’s

constitutional right not to be stopped except upon reasonable suspicion

was clearly established, and there is no factual dispute that it was

violated. More troubling, the video does not support Bartynski’s claim

that Niewolak swung at him, resulting in the second tackle. Therefore,

qualified immunity must be denied. Because this Court finds that there

is no genuine issue of material fact regarding Bartynski’s unlawful

pursuit and eventual seizure of Niewolak, Plaintiff is entitled to

summary judgment on Count I – Unreasonable Search and Seizure.

ii. Defendants Holcomb and Edwards are entitled to

summary judgment on Niewolak’s unreasonable

search and seizure claims.

As to the summary judgment motion of Defendant Officers Holcomb

and Edwards regarding Niewolak’s unreasonable search and seizure

claims, this motion will be granted. Niewolak now concedes that neither

Holcomb nor Edwards was present at the time of Bartynski’s initial take

down of Plaintiff. ECF No. 41, PageID.703. Because they neither

participated in the initial seizure of Niewolak, nor were present and

available to prevent the seizure of Niewolak prior to him being arrested,

there is no genuine issue of fact concerning their lack of liability, and

summary judgment will be granted in their favor on this Count.

C. Excessive Force (Count II)

The right to be free from excessive force during an arrest is a clearly

established right. Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001).

To assess a claim of excessive force under the Fourth Amendment, a court

considers “whether the officers’ actions were objectively reasonable in

light of the facts and circumstances confronting them, without regard to

their underlying intent or motivation.” McCaig v. Raber, 515 F. App’x

551, 555 (6th Cir. 2013) (cleaned up). The Supreme Court in Graham v.

Connor set out certain factors relevant to the reasonableness inquiry.

These include “the severity of the crime at issue, whether the suspect

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

whether he is actively resisting arrest or attempting to evade arrest by

flight.” Pershell v. Cook, 430 F. App’x 410, 415 (6th Cir. 2011) (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989). If the force was objectively

reasonable, Defendants are entitled to summary judgment on Plaintiff’s

Fourth Amendment claim.

In his complaint, Niewolak alleges that Defendant Officers used

excessive force, including but not limited to, forcefully grabbing him,

throwing him to the ground, and handcuffing him in an excessively tight

manner, causing pain and injury in addition to multiple abrasions and

scratches. ECF No. 1, PageID.4. Additionally, he alleges that Defendant

Officers “ignored [his] requests to loosen the handcuffs and/or complaints

that the handcuffs were too tight, and failed to loosen the handcuffs

resulting in injuries to [his] wrists.” ECF No. 1, PageID.8. Defendants

move for summary judgment on Plaintiff’s excessive force claim, first,

contending that the level of force was reasonable both during the initial

arrest of Plaintiff and in his subsequent hand-cuffing; and second,

denying that Defendant Officers violated a duty to loosen Niewolak’s

handcuffs. Plaintiff seeks partial summary judgment only against

Bartynski regarding the level of force used in connection with his arrest.

a. Defendant Bartynski is not entitled to qualified

immunity with respect to Niewolak’s excessive force

claim during Plaintiff’s arrest.

In Plaintiff’s partial motion for summary judgment, Niewolak

attempts to argue that Bartynski’s use of any force was excessive,

because there was no probable cause to arrest. The Sixth Circuit does not

appear to have conclusively ruled on this question, but the Second, Third,

Seventh, Ninth, and Eleventh circuits have rejected this argument,

explaining that “the lawfulness of an arrest is irrelevant to an excessive

force analysis.” Sebright v. City of Rockford, 585 F. App’x 905, 907 (7th

Cir. 2014) (collecting cases). As Justice (then-Judge) Sotomayor

explained in a 2006 case, “the reasonableness test established in Graham

remains the applicable test for determining when excessive force has

been used, including those cases where officers allegedly lack probable

cause to arrest.” Jones v. Parmley, 465 F.3d 46, 62 (2d Cir. 2006).

The Sixth Circuit also seems to have implicitly endorsed this

argument, adopting the reasoning of a Third Circuit decision in which a

court held that “the illegal entry into a suspect’s home by officers did not

automatically expose those officers to liability for any injuries that the

suspect may have suffered as a result of excessive force employed during

the arrest.” Est. of Sowards v. City of Trenton, 125 F. App’x 31, 41 (6th

Cir. 2005) (citing Bodine v. Warwick, 72 F.3d 393 (3rd Cir. 1995)).

Therefore, the ordinary Graham reasonableness test applies. The Court

will address each factor in turn.

i. Severity of the Crime

Bartynski alleges he received a tip from an anonymous informant

that the business where Niewolak was working was unlawfully growing

marijuana. Given the non-violent nature of this alleged offense, and

considering that the recreational use of marijuana is legalized in

Michigan, the “severity of the crime” factor weighs against the

reasonableness of the level of force that was used.

ii. Immediate Threat

The second factor concerns any immediate threat posed by the

suspect to law enforcement or to others. Since deference is given to

officers and the fact that they must make split-second decisions, an

officer’s use of force is more likely to be viewed as reasonable if it was

motivated by a genuine or at least genuinely-perceived safety threat. For

example, the force necessary to restrain a suspect is generally found to

be reasonable when officers believe the suspect is reaching for a weapon.

See, e.g., Brown v. City of Grand Rapids, Michigan, No. 16-2433, 2017

WL 4712064 (6th Cir. June 16, 2017). The force necessary to physically

remove a suspect from a vehicle is also considered reasonable where the

suspect poses a clear risk to the public. See, e.g., Smith v. Ball State

Univ., 295 F.3d 763, 766-67 (7th Cir. 2002). Force used against a non-

violent, non-threatening suspect, however, is more likely to be seen as

unnecessary and therefore unreasonable. See, e.g., Carpenter v. Bowling,

276 F. App'x 423, 427 (6th Cir. 2008) (holding that it was unreasonable

for officers to body slam and knee-strike a suspect, even though she was

yelling during a heated altercation, because she did not pose a serious

threat). At the time Bartynski arrived on the scene, Niewolak was non-

violent and non-threatening, so this factor weighs against using physical

force against him.

iii. Active Resistance

The Sixth Circuit distinguishes between active and passive

resistance. See Goodwin v. City of Painesville, 781 F.3d 314, 323 (6th Cir.

2015). “The former [active resistance] can be characterized by physical

force, a show of force, or verbal hostility coupled with failure to comply

with police orders. . . . The latter [passive resistance] is generally shown

by the lack of physical resistance or verbal antagonism.” Jackson v.

Washtenaw Cnty., 678 F. App'x 302, 306 (6th Cir. 2017) (internal

citations omitted). Active resistance requires not only a refusal to comply

with orders but also “some outward manifestation” that suggests

intentional disobedience or blatant resistance. Bennett v. Young, No.

3:16-CV-169-DJH-DW, 2018 WL 1575828, at *4 (W.D. Ky. Mar. 30, 2018)

(quoting Kent v. Oakland Cnty., 810 F.3d 384, 389 (6th Cir. 2016)).

Importantly, “. . . noncompliance alone does not indicate active

resistance; there must be something more.” Eldridge v. City of Warren,

533 F. App'x 529, 535 (6th Cir. 2013) (holding that even though the

plaintiff was noncompliant, viewing facts in light most favorable to him

suggested that he did not engage in active resistance since he did not

physically resist and was not verbally hostile).

Prior to the arrest, Bartynski appears to approach Niewolak from

behind but Niewolak continues to walk away. At this point, Niewolak was

passively resisting by failing to comply with the Bartynski’s claim that

he instructed Niewolak to stop. Once Bartynski tackled Niewolak to the

ground, he appears to be subdued, at which point Bartynski allowed him

to stand up. Once released, Niewolak claims he believed he was free to

go; however, the video appears to show Bartynski motioning for Niewolak

to stand against the wall, indicating Bartynski intended to either

question, detain, or arrest him.

Niewolak’s choice to continue walking away at that point quickly

evolves from passive to active resistance. A scuffle ensues in which

Niewolak is clearly resisting, and Bartynski is attempting to subdue

Niewolak. At this point Niewolak was well aware of Bartynski’s identity,

but he is struggling and seeming to fight back. Bartynski does not appear

to use more force than necessary to control Niewolak, and once additional

officers arrived on the scene, Bartynski allowed the two officers to assist

him in handcuffing Niewolak. On this record, there is a genuine issue of

material fact concerning whether the degree of force employed against

Niewolak was unreasonable and excessive. It is a jury question as to

whether the degree of force applied to subdue Niewolak while he was

actively resisting was unreasonable, and whether Bartynski’s conduct

violated Niewolak’s right to be free from excessive force. Accordingly,

both cross-motions for summary judgment regarding excessive force

claims against Bartynski are denied.

b. Defendant Officers are not entitled to qualified

immunity for excessively tight handcuffing.

The complaint first names Defendant Bartynski as being the

individual who grabbed Niewolak, 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 Niewolak and refused to loosen the handcuffs”

despite Niewolak’s pleas to loosen because they were causing pain and

injury. Id.

Although Niewolak alleges that Bartynski “handcuff[ed] him

excessively tightly without any warrant, probable cause or legal

justification whatsoever,” ECF No. 33, PageID.392, the video recording

clearly shows that two unidentified black male officers actually applied

the handcuffs to Niewolak after Bartynski subdued him. Video Ex., ECF

No. 30-3. Niewolak also alleges, however, that he told all Defendant

Officers that the handcuffs were cutting off his circulation and that his

hands were numb, but they did not respond to him. ECF No. 1, PageID.8;

ECF No.30-2, PageID.246.

In his reply to Defendant’s motion for summary judgment,

Niewolak now concedes that Defendants Edwards and Holcomb were not

at the scene during the initial take down but asserts that the officers had

a constitutional duty to prevent Bartynski and fellow officers from using

excessive force when handcuffing him because they had the means and a

reasonable opportunity either to prevent the forceful handcuffing, or at

the very least to loosen the handcuffs. ECF No. 41, PageID.703-04.

Plaintiff also makes a new argument, alleging that as direct supervisors

Edwards and Holcomb had a duty to intervene and are liable for the

conduct of the handcuffing officers.

Defendants Edwards and Holcomb argue that they are entitled to

summary judgment because first, Edwards was not present when

Niewolak was arrested. Second, Holcomb came in physical contact with

Niewolak after he was already arrested, handcuffed, and sitting on the

ground. ECF No. 30, PageID.194. Third, supervisor liability may not be

imposed on Holcomb and Edwards based solely on their rank and

Niewolak’s belated accusation under this theory has no “factual

foundation.” ECF No. 43, PageID.972. Defendants also contend they are

entitled to summary judgment because Plaintiff did not present this

argument at the motion to dismiss stage, nor in its initial complaint. Id.

(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).

Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999)). This Court is

unpersuaded and denies Defendants’ motion for summary judgment for

the reasons explained herein.

To establish an excessive force claim based on handcuffing,

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

handcuffs, (2) the officers ignored his complaint, and (3) the hand cuffs

caused a physical injury. McGrew v. Duncan, 937 F.3d 664, 668 6th Cir.

2019). “Not 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).

Sixth Circuit precedent establishes that 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). Here, Niewolak has alleged that Defendant

Officers heard him complain that the handcuffs were too tight and did

nothing. Holcomb and Edwards both have testified they cannot recall

what, if anything Niewolak said to them at the scene of the arrest.

Holcomb Dep., ECF No. 41-9, PageID.798-802,; Edwards Dep., ECF No.

41-10, PageID.809.

Based on the above caselaw, the Court need not address the

viability of Niewolak’s supervisor liability argument because the role and

rank of Holcomb and Edwards is not the dispositive issue in Niewolak’s

excessive handcuffing claim. The issue is whether the officers were told

that the handcuffs were too tight, and were in a position to loosen them.

Here, Niewolak has presented sufficient facts to support a claim of

excessively forceful handcuffing against Defendant Officers. Niewolak’s

testimony and the video create a genuine issue of fact that (1) he

complained to each of the officers that the handcuffs were too tight, (2)

that each of the officers ignored Niewolak’s requests to loosen the

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

resulted in injuries to his wrists, including abrasions and scratches. ECF

No. 1, PageID.4; id. at PageID.8.

The video shows two officers, identified as Edwards and Holcomb,

appearing briefly at the scene after Niewolak is handcuffed. ECF No. 30-

3. The officer identified as Edwards, see ECF No. 30-2, PageID.243,

appears briefly from the corner of the building in plain clothes as

Niewolak is handcuffed by two unidentified black male officers. Holcomb,

dressed in uniform, then appears after Niewolak has been handcuffed

and appears to walk towards Niewolak and communicate with him

briefly. The substance of the conversation cannot be discerned from

viewing the video, but a reasonable juror could conclude that it

corroborates Niewolak’s testimony that he was then complaining about

the tightness of his handcuffs. Likewise, the video shows that at various

points during the arrest Edwards and Holcomb had the means and

opportunity to at the very least, loosen Niewolak’s handcuffs when he

allegedly complained that they were too tight. Video Ex, ECF No. 30-3.

The video also clearly indicates that Bartynski played an integral

role in arresting Niewolak and was close by at the time he was

handcuffed, making it reasonable for a jury to find that Bartynski was

also aware of Niewolak’s alleged complaints that his handcuffs were too

tight, and had the means and opportunity to loosen them but failed to do

so.

With respect to qualified immunity, as to the “clearly established”

prong, “[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, the time of this incident, that Niewolak

had a right to be free from excessively forceful handcuffing. See also

Courtright, 839 F.3d at 519.

Because there is a genuine dispute of material fact as to whether

Defendant Officers were notified that Niewolak’s handcuffs were too

tight, Defendants are not entitled to qualified immunity on Niewolak’s

excessive force in handcuffing claim at the motion for summary judgment

stage, and Defendants’ motion is denied.

D. False Arrest and Imprisonment against all Defendants

(Count IV)

A civil plaintiff bringing a claim of false arrest has the burden to

establish that (1) he was arrested by the defendant(s), (2) he was aware

of his arrest, (3) the arrest was against his will, (4) the defendant(s) acted

intentionally, and (5) the arrest was illegal. M Civ JI 116.20. “The

elements of false imprisonment are [1] an act committed with the

intention of confining another, [2] the act directly or indirectly results in

such confinement, and [3] the person confined is conscious of his

confinement.” Moore v. Detroit, 252 Mich. App. 384, 387 (Mich. Ct. App.

2002).

Niewolak alleges in his Complaint that he was “unlawfully and

falsely arrested as he was arrested without probable cause and

transported by Defendants to police headquarters, where he was falsely

imprisoned and detained for an unreasonable and unjustified time.” ECF

No. 1, PageID.12. In response, Defendant Officers raise the defense that

as police officers acting within the scope of their duties, they are entitled

to immunity from tort claims under Michigan law.

a. Bartynski is not entitled to governmental immunity.

Because the Court has determined that neither reasonable

suspicion nor probable cause existed at the time of Niewolak’s arrest, the

arrest was unlawful, and thus constitutes a false arrest. Accordingly,

Plaintiff is entitled to summary judgment on the claim of false arrest.

In Odom v. Wayne County, 482 Mich. 459 (2008), the Michigan

Supreme Court held that the Governmental Tort Liability Act (GTLA)

provided immunity from intentional tort liability, and that the proper

test to be applied in determining if a governmental employee enjoys

immunity from an intentional tort is found in Ross v. Consumers Power

Co., 420 Mich. 567 (1984). Under Ross, to take advantage of qualified

immunity for intentional torts, a governmental employee must raise

governmental immunity as an affirmative defense and must satisfy a

three-part test proving:

a) the acts were undertaken during the course of employment and

the employee was acting, or reasonably believed that he was acting,

within the scope of his authority;

b) the acts were undertaken in good faith, or were not undertaken

with malice; and

c) the acts were discretionary, as opposed to ministerial.

Id. at 592; Odom, 482 Mich. at 480. First, in this case, the Court has

concluded that a reasonable officer would have known he was violating

Niewolak’s constitutional rights by apprehending him without

reasonable suspicion and arresting him without probable cause. Second,

given that Bartynski continued to pursue Niewolak after he recognized

that he was an employee of Great Auto Lakes, a fact question exists as to

the intent of Bartynski’s second tackling of Niewolak. In Odom, the

Michigan Supreme Court defined lack of good faith “as malicious intent,

capricious action or corrupt conduct.” Id. (citations omitted).

Furthermore, “willful and wanton misconduct is made out only if the

conduct alleged shows an intent to harm or, if not that, such indifference

to whether harm will result as to be the equivalent of a willingness that

it does.” Id. (citations omitted). Good faith “is subjective in nature” and

“protects a defendant's honest belief and good-faith conduct with the

cloak of immunity.” Id. at 481-82.

ere, the Court finds that a reasonable jury could conclude that

Bartynski was indifferent towards the harm that could result from

unlawfully tackling and arresting Niewolak. For the same reasons, the

Court finds a reasonable jury could conclude that Bartynski’s conduct

was discretionary, as opposed to ministerial given the unlawful nature of

the arrest. Therefore, the Court finds that Bartynski is not entitled to

immunity at the summary judgment stage.

b. Defendants Holcomb and Edwards are entitled to

governmental immunity.

Because this Court has determined Defendants Holcomb and

Edwards were not present or involved in the decision to arrest Plaintiff,

or in his physical seizure, the motion for summary judgment by

Defendants Holcomb and Edwards on the claim of false arrest and

imprisonment is granted.

E. Intentional Infliction of Emotional Distress (V)

To establish a claim of intentional infliction of emotional distress,

the plaintiff must show: “(1) extreme and outrageous conduct, (2) intent

or recklessness, (3) causation, and (4) severe emotional distress.”

Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999).

Because there is a genuine issue of material fact as to whether

excessive use of force was applied, it follows that a reasonable jury could

find that Niewolak did in fact suffer intentional infliction of emotional

distress due to Defendant Officers’ conduct. Accordingly, the Defendants’

motion for summary judgment is denied.

F. Assault and Battery (Count VI)

Defendant Officers raise the defense that as police officers acting

within the scope of their duties, they are entitled to immunity from tort

claims under Michigan law. Niewolak now withdraws his claims of

assault and battery against Defendants Edwards and Holcomb, so the

only issue before the Court is whether Defendant Bartynski is entitled to

governmental immunity for Niewolak’s assault and battery claims. ECF

No. 41, PageID.709.

Given that the record creates a fact question on reasonableness,

and Bartynski’s intent during his continued pursuit and take down of

Niewolak, there is a genuine dispute as to whether Bartynski’s conduct

constituted an “intentional unlawful offer of corporal injury to another

person by force, or force unlawfully directed toward the person of another,

under circumstances which create a well-founded apprehension of

immediate contact, coupled with the apparent present ability to

accomplish the contact.” VanVorous v. Burmeister, 262 Mich. App. 467,

483 (2004), quoting Espinoza v. Thomas, 189 Mich. App. 110, 119 (1991).

Similarly, a reasonable jury could find evidence of battery, or a “willful

and harmful offensive touching of another person which results from an

act intended to cause such a contact.” Id. Accordingly, Defendant

Bartynski’s motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary

Judgment (ECF No. 30) is GRANTED IN PART, and DENIED IN

PART. Plaintiff’s partial Motion for Summary Judgment (ECF No. 33) is

also GRANTED IN PART, and DENIED IN PART.

As to Count I (Unreasonable Search and Seizure) against

Defendants Bartynski, Edwards and Holcomb:

 Plaintiff’s Motion for partial Summary Judgment, ECF No.

33, is GRANTED as to Defendant Bartynski only;

 Defendants’ Bartynski, Edwards and Holcomb’s Motion for

Summary Judgment, ECF No. 30, is DENIED as to

Bartynski and GRANTED as to Edwards and Holcomb;

As to Count II (Excessive Force) against Defendants Bartynski,

Edwards and Holcomb:

 Plaintiff’s Motion for partial Summary Judgment against

Defendant Bartynski, ECF No. 33, is DENIED;

 Defendants Bartynski, Edwards and Holcomb’s Motion for

Summary Judgment, ECF No. 30, is DENIED.

As to Count IV (False Arrest) against Defendants Bartynski,

Holcomb and Edwards:

 Plaintiff’s Motion for partial Summary Judgment as to

Defendant Bartynski, ECF No. 33, is GRANTED;

 Defendants Bartynski, Edwards and Holcomb’s Motion for

Summary Judgment, ECF No. 30, is DENIED as to Bartynski

and GRANTED as to Edwards and Holcomb.

As to Count V (Intentional Infliction of Emotional Distress) against

Defendants Bartynski, Holcomb, and Edwards:

 Defendants Bartynski, Edwards and Holcomb’s Motion for

Summary Judgment, ECF No. 30, is DENIED.

As to Count VI (Assault and Battery) against Defendants

Bartynski, Holcomb and Edwards:

 Defendants Bartynski, Edwards and Holcomb’s Motion for

Summary Judgment, ECF No. 30, is DENIED as to Bartynski

and GRANTED as to Edwards and Holcomb.

Accordingly, Judgment may be entered in favor of Plaintiff against

Defendant Bartynski only on Counts I (Unreasonable Search and

Seizure) and IV (False Arrest); and in favor of Defendants Edwards and

Holcomb only on Counts I (Unreasonable Search and Seizure), IV (False

Arrest), and VI (Assault and Battery).

The remaining Counts to be tried to a jury are Count II (Excessive

Force) against all Defendants, Count V (Intentional Infliction of

Emotional Distress) against all Defendants, and Count VI (Assault and

Battery) against Bartynski only.

IT IS SO ORDERED.

Dated: July 19, 2022 s/Terrence G. Berg

TERRENCE G. BERG

UNITED STATES DISTRICT JUDGE