Katrina McGrew v. Sergeant Duncan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0225p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KATRINA MCGREW, ┐

Plaintiff-Appellee, │

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> No. 18-2022

v. │

│

│

SERGEANT DUNCAN, et al., │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:16-cv-10978—Denise Page Hood, Chief District Judge.

Argued: May 1, 2019

Decided and Filed: September 4, 2019

Before: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan,

for Appellants. Solomon M. Radner, EXCOLO LAW, PLLC, Southfield, Michigan, for

Appellee. ON BRIEF: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit,

Michigan, for Appellants. Solomon M. Radner, Rebeca Martinez Sicari, EXCOLO LAW,

PLLC, Southfield, Michigan, for Appellee.

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OPINION

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GRIFFIN, Circuit Judge.

A group of masked City of Detroit police officers broke down plaintiff Katrina

McGrew’s door, threw her to the ground, and handcuffed her so tightly it left bruises. When she

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complained about how constricting the handcuffs were, the officers threatened her life. She sued

the officers pursuant to 42 U.S.C. § 1983 and Michigan law. They now appeal the district

court’s denial of their motions for summary judgment based upon qualified immunity and

governmental immunity. We affirm, dismiss the appeal in part for lack of jurisdiction, and

remand for further proceedings consistent with this opinion.

I.

On the eve of Thanksgiving in 2014, Katrina McGrew was busy preparing the next

evening’s dinner when the Detroit Police Department executed a search warrant on her home.

As she stood in her kitchen stirring macaroni, she heard a bang at the front door. When she went

to investigate, she saw defendants, a group of Detroit Police Officers, standing in her living

room. They were wearing all black. Masks concealed their faces. She could see only their eyes.

One of the officers threw her to the ground, put his knee in her back and handcuffed her.

The handcuffs were tight, and McGrew so advised the officer. He responded: “[S]hut up, b----,

you shouldn’t be so fat.” When she complained to the same officer a second time, he responded:

“[I]f you don’t shut your f---ing mouth I can blow your head off and nothing can be done.”

The police seized a bag of marijuana and a pistol, which they documented on the search-

warrant return. They also allegedly seized, but did not mention, another gun, a pair of diamond

earrings, a Samsung Galaxy S4 tablet, and a new-in-the-box Samsung Galaxy S5 phone. No

records show these seizures or return of the property.

A few days later, McGrew went to the hospital for injuries she sustained during the raid.

She was diagnosed with musculoskeletal strain in her chest and ecchymosis (bruising) on her

right wrist.

McGrew sued the officers and the Detroit Police Department, asserting constitutional

claims of excessive force and deliberate indifference as well as various state-law claims.

Defendants moved for summary judgment on all claims, arguing that they were entitled to

qualified immunity on the § 1983 claim and governmental immunity on the state-law claims.

The district court denied qualified immunity, governmental immunity, and summary judgment

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on McGrew’s § 1983 excessive-force claim and state-law claims for assault, battery, and

conversion. The district court, however, granted summary judgment in favor of the Detroit

Police Department and in favor of the officers on plaintiff’s claim for intentional infliction of

emotional distress.

The defendant officers now appeal; plaintiff McGrew does not cross-appeal.

II.

We begin with McGrew’s § 1983 excessive-force claim and the officers’ contention that

they are entitled to qualified immunity. Qualified immunity shields the officers from suit if

(1) they did not violate any of McGrew’s constitutional rights or (2) the violated rights, if any,

were not “clearly established” when they acted. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

One variant of McGrew’s claim stems from how tightly the officers handcuffed her. To

succeed on it, she must prove that she complained about the tightness of the handcuffs, the

officers ignored her complaint, and the handcuffs caused a physical injury. Morrison v. Bd. of

Trs., 583 F.3d 394, 401 (6th Cir. 2009). The officers do not dispute that McGrew complained

and that they did not loosen the handcuffs. So whether they are entitled to qualified immunity

turns on whether McGrew suffered an injury and whether the right she claims they violated was

clearly established when they acted.

On these two points, the officers present essentially the same argument: bruising is not

enough. They contend that “[h]andcuffing that results in bruising does not violate any clearly

established constitutional right” and “[t]here was no manifest evidence of a clear physical

injury.” This argument is without merit. In Morrison, we held that “allegations of bruising and

wrist marks create a genuine issue of material fact” on whether a plaintiff has suffered a physical

injury. 583 F.3d at 403. Thus, under Morrison, bruising is enough. That means McGrew has

created a genuine issue of material fact regarding whether the officers violated her right to be

free from excessively tight handcuffing that causes physical injury. Further, because we decided

Morrison before the events in this case, McGrew’s right was clearly established at the time

defendants acted. Thus, the officers are not entitled to qualified immunity on this variant of

McGrew’s excessive-force claim.

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McGrew raises another excessive-force claim—one arising from an officer allegedly

throwing her to the ground to handcuff her. Although she asserts this claim in her complaint,

and argued it in opposition to the officers’ motion for summary-judgment, the district court did

not rule on whether the officers are entitled to qualified immunity on it. Under these

circumstances, we deem it prudent to direct the district court to address the issue on remand.

Finally, we note a third variant of McGrew’s excessive-force claim—one she raises for

the first time on appeal. Despite her complaint’s silence on the topic, McGrew argues in her

appellate brief that the officers had no reason to handcuff her and that doing so itself amounted

to excessive force. But an amended complaint, not an appellate brief, is the vehicle with which

to add new claims. See Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328–29 (6th Cir.

2006). If McGrew wishes to pursue this claim, she should move in the district court to amend

her complaint.

III.

Next, we turn to McGrew’s state-law claims, on which the officers assert they are entitled

to governmental immunity. Just as qualified immunity protects officials from federal claims,

Michigan’s governmental immunity shields officials from state claims if (1) the officials acted

during the course of their employment and were, or reasonably believed they were, within the

scope of their authority; (2) they acted in good faith; and (3) their acts were discretionary instead

of ministerial. Odom v. Wayne Cty., 760 N.W.2d 217, 224–26 (Mich. 2008).

Here, McGrew brought a handful of state claims arising from different harms. Her

assault claim, for example, flows from the officers allegedly throwing her to the ground. Her

battery claim stems from both the throw to the ground and the allegedly tight handcuffs. And her

conversion claim comes from the officers allegedly taking two pistols, diamond earrings, a

tablet, and a phone.

The officers contend that they are immune from these claims, but discuss only the

handcuffing variant of the battery claim. By not contending that governmental immunity shields

them from the other battery claim, the assault claim, and the conversion claim, the officers have

abandoned such arguments. “A party may not present a skeletal argument, leaving the court to

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put flesh on its bones.” Ruffin v. Cuyahoga Cty., 708 F. App’x 276, 278 (6th Cir. 2018) (citing

United States v. Hendrickson, 822 F.3d 812, 829 n.10 (6th Cir. 2016)). And here the officers

have not presented any argument at all—much less a skeletal one.

That leaves the tight-handcuffing variant of McGrew’s battery claim. Governmental

immunity does not protect the officers from this claim because McGrew has produced evidence

suggesting that the officer who handcuffed her tightened the handcuffs in bad faith. She testified

that when she complained twice about the handcuffs’ tightness, the officer said “shut up, b----,

you shouldn’t be so fat” and “if you don’t shut your f---ing mouth I can blow your head off and

nothing can be done.” Under these facts, it is difficult for us to imagine a clearer example of bad

faith.

IV.

Finally, we note that defendant officers’ other arguments are ones we lack jurisdiction to

consider.

Jurisdiction on McGrew’s Federal Claim. In interlocutory appeals, defendants “may not

appeal a district court’s summary[-]judgment order insofar as that order determines whether or

not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S.

304, 319–20 (1995). Thus, we may examine only purely legal questions. Gregory v. City of

Louisville, 444 F.3d 725, 742 (6th Cir. 2006). Yet the officers ask us to reweigh the facts. They

assert qualified immunity on McGrew’s § 1983 excessive-force claim primarily on the basis that

she is unable to positively identify the defendant who handcuffed her. She testified that the

officer was a “light-skin[ned] black guy” about six feet two inches tall. The officers emphasize

that none of them match that exact description.

The legal question here is one we have answered before: If officers actively conceal their

identities by wearing masks, and if that concealment prevents a plaintiff from identifying which

officer violated her rights, she may get to a jury if she can create genuine factual issues regarding

the officers’ presence at the scene. See Burley v. Gagacki, 729 F.3d 610, 622 (6th Cir. 2013); see

also Greer v. City of Highland Park, 884 F.3d 310, 316 (6th Cir. 2018). And on this record, the

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trier of fact may decide liability because the officers actively concealed their identities by

wearing masks, and none disputes his presence at the scene.

But the officers do not ask us to apply a different legal standard. Rather, they ask us to

quibble with the district court’s factual findings. When they raised their argument below, the

district court ruled that the evidence, viewed in the light most favorable to McGrew, created a

genuine issue of material fact regarding the identity of the officer who handcuffed her. In doing

so, the court refused to dismiss specific officers because it would require speculation as to what

McGrew meant by “light skinned.” Instead of accepting the district court’s conclusion, though,

the officers provide pictures of their faces—unmasked, of course—and argue repeatedly that

each officer “cannot reasonably be found to fit the description of a 6’2” light-skinned black

man.” In other words, the officers ask us to go outside the record to make factual findings the

district court never made—findings the court specifically declined to make given the uncertainty

it saw in the record. (Indeed, that uncertainty stems from defense counsel’s failure to ask

McGrew how she could tell that the officer who handcuffed her was “light skinned” or what she

meant by that description. McGrew also testified that she could see only the officers’ eyes, and

the record contains no other information on how much of each officer’s face the masks

concealed.) We therefore lack jurisdiction to consider this argument.

Jurisdiction on McGrew’s State Claims. In a federal-question action involving pendent

state claims, we look to state immunity law to determine whether a denial of state-law immunity

is appealable. See Walton v. City of Southfield, 995 F.2d 1331, 1343 (6th Cir. 1993), superseded

by court rule on other grounds as recognized in Livermore v. Lubelan, 476 F.3d 397, 407–08

(6th Cir. 2007). And when it comes to Michigan law, we have held that, because the denial of

governmental immunity is a “final order” that provides defendants with an appeal of right to the

Michigan Court of Appeals, we have jurisdiction over interlocutory appeals involving pendent

state-law claims of governmental immunity. See Livermore, 476 F.3d at 407–08.

But the same is not true for appeals of ordinary summary-judgment denials. Instead, the

doctrine of pendent appellate jurisdiction allows us, in our discretion, “to exercise jurisdiction

over issues that are not independently appealable when those issues are ‘inextricably

intertwined’” with issues we have jurisdiction to consider. Chambers v. Ohio Dep’t of Human

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Servs., 145 F.3d 793, 797 (6th Cir. 1998) To be so intertwined, a claim must be “coterminous

with” or “subsumed in” a claim within our jurisdiction. Id. Put differently, we must be unable to

resolve the properly appealable issue without addressing the nonappealable one. Id.

Here, the officers’ governmental-immunity arguments do not subsume their generic-

summary-judgment ones, and the two categories of arguments do not share the same boundaries

that coterminous ones would. Governmental immunity hinges on how the officers acted—the

scope of their actions, the attitude with which they took them, and the leeway they had to so act,

see Odom, 760 N.W.2d at 224–26 (discussing the elements of governmental immunity for

intentional torts), while the officers’ summary-judgment arguments turn on what they did. They

contend that “there is no evidence to show that any particular individual officer battered or

assaulted plaintiff” and that “[t]here certainly is no evidence to show that any individual officer

personally exerted any act of dominion over [McGrew’s] personal property or converted any of

her property.” Indeed, in the headings for their arguments, they state that they are “entitled to

summary judgment for want of a genuine issue of material fact.” Because we can resolve the

governmental-immunity issues without resolving summary-judgment ones, we lack jurisdiction

to consider the latter.

V.

For these reasons, we affirm the denial of qualified immunity and governmental

immunity, dismiss in part the officers’ appeal for lack of jurisdiction, and we remand for the

district court to consider the variant of McGrew’s excessive-force claim stemming from an

officer throwing her to the ground and for further proceedings consistent with this opinion.