Petition for Writ of Certiorari — Christopher Schurr, Petitioner v. Peter Lyoya, Personal Representative for the Estate of Patrick Lyoya, Deceased

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Sixth Circuit (September 9, 2024) ..................... 1a

Judgment, U.S. Court of Appeals for the

Sixth Circuit (September 9, 2024) ................... 10a

Opinion and Order, U.S. District Court for the

Western District of Michigan

(August 28, 2023) ............................................. 11a

REHEARING ORDER

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Sixth Circuit

(October 21, 2024) ............................................ 36a

App.1a

OPINION, U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(SEPTEMBER 9, 2024)

NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0381n.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

PETER LYOYA, PERSONAL REPRESENTATIVE

FOR THE ESTATE OF PATRICK LYOYA (DECEASED),

Plaintiff-Appellee,

v.

CHRISTOPHER SCHURR,

Defendant-Appellant.

________________________

No. 23-1887

On Appeal from United States District Court

for the Eastern District of Michigan

Before: SILER, COLE, and BUSH, Circuit Judges.

OPINION

COLE, Circuit Judge. Christopher Schurr, then a

Grand Rapids police officer, fatally shot Patrick Lyoya

during a traffic stop. Lyoya’s estate brought a claim

against Schurr under 42 U.S.C. § 1983 for violating

App.2a

Lyoya’s Fourth Amendment rights. Schurr moved to

dismiss, arguing that he is protected by qualified

immunity. The district court denied his motion and

Schurr appealed. We dismiss Schurr’s appeal for lack

of appellate jurisdiction.

I.

Our jurisdiction is narrow in this interlocutory

appeal. We accept the facts alleged in the complaint

as true unless clear video evidence “blatantly contradicts

or utterly discredits” the plaintiff’s version of events.

Bell v. City of Southfield, 37 F.4th 362, 366 (6th Cir.

2022); see also Scott v. Harris, 550 U.S. 372, 380

(2007).

We begin with the facts alleged in the complaint.

On April 4, 2022, just after 8 am, Patrick Lyoya, a 26year-old Black man, was pulled over by Schurr.

Lyoya’s friend was riding in the passenger seat. Lyoya

pulled over, opened his door, and stood next to his car.

Before Schurr exited his patrol car, he yelled at Lyoya

to get back in the car, but Lyoya did not immediately

do so. Schurr then approached Lyoya.

From outside the car, Lyoya attempted to direct

his friend to find his driver’s license inside the car.

Lyoya then began walking towards the front of his car,

apparently heading to the passenger side to get his

driver’s license from the glove compartment. Schurr

grabbed Lyoya and told him to put his hands behind

his back. Lyoya ran into an adjacent yard.

Schurr chased after Lyoya. When Schurr caught

up to Lyoya, he “grabbed, kicked, punched, slapped,

and kneed” Lyoya to the ground. (Am. Compl., R. 2,

PageID 19, ¶ 23.) Lyoya got back up and “passively

App.3a

tried to free himself.” (Id. at PageID 19, ¶ 24.) Without

warning, Schurr drew and fired his Taser. As the first

probe deployed, Lyoya “extended his left arm to

deflect the Taser’s barrel away from him.” (Id. at

PageID 20, ¶ 28.) “At the same time, the Taser

remained firmly within the grip of Schurr’s right

hand.” (Id. at PageID 20, ¶ 29.) Schurr stayed within

reach, “re-directed the Taser, and deployed the second,

and last remaining, probe.” (Id. at PageID 20, ¶ 30.)

At that point, the Taser could no longer be fired and

could only be used in drive-stun mode (requiring

direct contact).

Lyoya “fell down to the ground with his left arm

still extended away from his body in an attempt to aim

the Taser’s barrel at the ground, and away from him.”

(Id. at PageID 20, ¶ 31.) Schurr “pinned [Lyoya] to the

ground using his full body weight on [Lyoya’s] back.”

(Id. at PageID 20, ¶ 32.) Schurr “h[eld] [Lyoya] down,

grab[bed] his gun, press[ed] it along the base of his

skull, and kill[ed] him with one shot to the back of the

head.” (Id. at PageID 20, ¶ 33.)

Throughout the incident, Lyoya never “voiced a

threat or returned a physical blow, in any form.” (Id.

at PageID 21, ¶ 35.) Segments of the incident were

captured on video by Lyoya’s friend’s cell phone,

Schurr’s body camera, Schurr’s dash camera, and a

Ring video doorbell camera at a house across the

street.

Lyoya’s estate sued Schurr and the City of Grand

Rapids under 42 U.S.C. § 1983, alleging that Schurr

violated Lyoya’s Fourth Amendment rights. The

defendants moved to dismiss. The district court granted

the city’s motion, but denied Schurr’s motion, deter-

App.4a

mining that Schurr was not entitled to qualified

immunity at this stage. Schurr timely appealed.

II.

Schurr brings an interlocutory appeal from the

district court’s denial of his motion to dismiss, challenging the district court’s denial of qualified immunity. When presented with such an appeal, “[w]e must

first determine whether we have jurisdiction.” Adams

v. Blount County, 946 F.3d 940, 948 (6th Cir. 2020).

While the denial of a motion to dismiss is not a final

decision, “appellate courts have limited jurisdiction to

answer purely legal questions in appeals from the

denial of qualified immunity” but “ordinarily lack

jurisdiction to wade into factual disputes.” Bell, 37

F.4th at 365.

There are “two exceptions to entertain appeals

from denials of qualified immunity that ‘may contain

some dispute of fact.’” Id. (quoting Adams, 946 F.3d at

948). These exceptions apply only in “narrow circumstances.” Adams, 946 F.3d at 948. First, if the defendant

is “willing to accept the plaintiff’s version of what

happened, we can ‘overlook’ the factual dispute and

address the legal dispute based on the plaintiff’s

account.” Bell, 37 F.4th at 365 (quoting Adams, 946 F.3d

at 948). Second, we have jurisdiction over an appeal that

challenges the plaintiff’s factual allegations where

“clear” and “indisputable” video evidence “blatantly

contradicts or utterly discredits” the allegations at

issue so as to make them “implausible.” Id. at 364,

366.

Schurr argues that we have jurisdiction over this

appeal under the first exception because it “presents

the purely legal question of what was clearly estab-

App.5a

lished when an officer loses control of his taser because

of the actions of an actively resistant individual.”

(Appellant Br. 16.) But Schurr does not concede the

estate’s version of the facts. Schurr characterizes Lyoya

as “an actively resistant suspect that [] disarmed him,

fought against him to the point of exhaustion, and

who, while engaged in close contact with the officer,

[was] turning to face the officer with the officer’s Taser

in hand, which [was] capable of causing serious injury

or death.” (Id. at 69.)

The complaint does not allege that Lyoya disarmed

Schurr, and it does not allege that Lyoya took Schurr’s

Taser. The complaint states that Lyoya first sought to

“deflect the Taser’s barrel away from him, to protect

himself” while “the Taser remained firmly within the

grip of Schurr’s right hand.” (Am. Compl., R. 2, at

PageID 20, ¶ 28-29.) Further, when Lyoya fell to the

ground, he was still extending his arm “in an attempt

to aim the Taser’s barrel at the ground, and away from

him.” (Id. at PageID 20, ¶ 31.) Nor does the complaint

allege that Lyoya fought Schurr. According to the

complaint, “even as he passively resisted . . . [Lyoya]

never voiced a threat or returned a physical blow, in

any form, to Schurr.” (Id. at PageID 21, ¶ 35.)

Finally, according to the complaint, Lyoya was

not turning to face Schurr with Schurr’s Taser in hand

when Schurr shot him. The complaint states that

Schurr “pinned [Lyoya] to the ground using his full

body weight on [Lyoya’s] back.” (Id. at PageID 20,

¶ 32.) Schurr then held Lyoya down, unholstered his

gun, “press[ed] it to the base of [Lyoya’s] skull, and

kill[ed] him with one shot to the back of the head.” (Id.

at PageID 20, ¶ 33.)

App.6a

Schurr “‘applie[s] his own factual conclusions and

inferences’” to the estate’s claims and his arguments

depend on a version of the facts the estate “does not

accept.” Anderson-Santos v. Kent County, 94 F.4th

550, 554-55 (6th Cir. 2024) (alteration in original)

(quoting Barry v. O’Grady, 895 F.3d 440, 444 (6th Cir.

2018)). Accordingly, Schurr fails to invoke our jurisdiction under the first exception. Id.

The second exception is inapplicable here because

the video footage does not blatantly contradict or

utterly discredit the estate’s version of events. See Bell,

37 F.4th at 364-66. Four cameras recorded segments

of the incident: (1) a Ring video doorbell camera; (2)

Schurr’s dash camera; (3) Schurr’s body camera; and

(4) Lyoya’s friend’s cell phone camera.

The recording from the Ring video doorbell,

positioned across the street from Schurr and Lyoya,

has poor video and audio quality. The video shows two

blurred figures moving across a yard before going to

the ground. (Ring Doorbell Video, Ex. 8, R. 17-9.) Only

a muffled gunshot can be heard on the audio feed. (Id.)

The Ring doorbell recording does not show whether

Lyoya fought or disarmed Schurr, or whether Schurr

had subdued Lyoya before shooting him. (Id.)

Schurr’s dash and body cameras did not capture

the critical moments leading up to Schurr’s use of

deadly force. Schurr and Lyoya moved out of the dash

camera’s view more than a minute before the gunshot.

(Dash Camera Video, Ex. 1, R. 17-2; 2:56-4:13.) And

the body camera went dark six seconds after Schurr fired

the second Taser probe, and it shut down completely

40 seconds before the gunshot. (Body Camera, Ex. 2,

R. 17-3, 3:18, 3:32.)

App.7a

The body camera does show Lyoya grab the Taser’s

barrel just after Schurr deployed the first probe, and

shows Lyoya’s hand on the Taser when Schurr fired

the second probe five seconds later. (Id. at 3:07-13.)

This is consistent, however, with the complaint’s

allegations; specifically, that “Schurr never gave [Lyoya]

a verbal warning before he deployed the Taser,” that

Lyoya “deflect[ed] the Taser’s barrel away from him []

to protect himself” while “the Taser remained firmly

within the grip of Schurr’s right hand,” and that

“Schurr re-directed the Taser, and deployed the second,

and last remaining, probe.” (Am. Compl., R. 2, PageID

20, ¶ 27-30.)

Lyoya’s friend began filming the incident on his

cell phone after Schurr tackled Lyoya, just after

Schurr delivered two knee strikes. (Compare Dash

Camera Video, Ex. 1, R. 17-2 with Cell Phone Video,

Ex. 3, R. 17-4.) The camera is mostly directed at the

ground instead of at Lyoya and Schurr, and it does not

capture large segments of the incident. (Cell Phone

Video, Ex. 3, R. 17-4.) Unlike the other cameras, however, the cell phone captured the seconds leading up

to Schurr’s use of deadly force.

Like the body camera, the cell phone video shows

Lyoya’s hand on the barrel of the Taser, while the

Taser is still firmly in Schurr’s grip. (Id. at 0:53.) The

video also shows Lyoya continuing to push the Taser

away from himself after he falls to the ground. (Id. at

0:54, 1:13.) The video does provide a “fuller picture”

than the few sentences of allegations in the complaint.

(Reply Br. 20 (quoting Bell, 37 F.4th at 365).) But, that

“fuller picture” does not utterly discredit the complaint,

which admits that Lyoya interfered with the taser

from the time Schurr first deployed it. See Bell, 37

App.8a

F.4th at 365-66 (finding no appellate jurisdiction to

resolve a factual dispute as to who initiated a struggle

where the videos provided a “fuller picture” but were

unclear as to the disputed fact and therefore did not

“blatantly contradict, [o]r utterly discredit” the plaintiff’s

account).

The cell phone video also does not indisputably

show Lyoya turning to confront Schurr with Schurr’s

own taser in hand at the time that Schurr used deadly

force. Schurr argues that the video shows both of his

hands and does not show the taser, so he no longer

had a hand on the taser when he used deadly force.

The video does show Schurr use one hand to push

Lyoya into the ground and simultaneously use the other

hand to unholster his firearm and shoot Lyoya in the

back of the head. But this is consistent with the

complaint—and therefore does not blatantly contradict

it. The complaint alleges that after Schurr “pinned

[Lyoya] to the ground,” Schurr then “h[eld] Lyoya down,

grabb[ed] his gun, press[ed] it to the base of [Lyoya’s]

skull, and kill[ed] him with one shot to the back of the

head.” (Am. Compl., R. 2, PageID 20, ¶ 32-33.)

Schurr points to a “yellow” speck between Lyoya’s

hands and argues that this shows Lyoya had taken

the Taser in the seconds before Schurr shot him.

(Appellant Br. 32.) On our review, we cannot clearly

identify the Taser in this part of the video. (Cell Phone

Video, Ex. 3, R. 17-4, 1:54.) Moreover, even if the video

did clearly show the taser’s position, it does not

indisputably show whether Lyoya was actually holding

the taser. Nor does the video show if Lyoya grabbed

the handle or merely pressed the barrel against the

ground, nor whether Schurr voluntarily released the

twice-fired taser to draw his firearm.

App.9a

Finally, the cell phone video supports—and therefore does not blatantly contradict—the allegation that

Schurr had subdued Lyoya prior to using deadly force

without warning. The video confirms that Schurr pinned

Lyoya, rose to his feet, drew his firearm, shoved Lyoya

into the ground, and then, without warning, shot

Lyoya in the back of the head. (Id. at 1:49–56.)

***

Lyoya’s “level of resistance and whether he was

[subdued] before being [shot]—the facts [Schurr] refuses

to concede—are central to this inquiry.” Clay v. Emmi,

797 F.3d 364, 370 (6th Cir. 2015). As described above,

the available video footage does not undermine the

factual allegations in the complaint so as to make the

complaint implausible. See Bell, 37 F.4th at 364.

Therefore, “without (1) a concession of [the estate’s]

version of [events] or (2) video evidence that blatantly

contradicts or utterly discredits [its] account, we are

left with a factual dispute over which we do not have

jurisdiction.” Id. at 366.

III.

For the foregoing reasons, we dismiss Schurr’s

appeal of the denial of qualified immunity for lack of

appellate jurisdiction.

App.10a

JUDGMENT, U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(SEPTEMBER 9, 2024)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

PETER LYOYA, PERSONAL REPRESENTATIVE

FOR THE ESTATE OF PATRICK LYOYA (DECEASED),

Plaintiff-Appellee,

v.

CHRISTOPHER SCHURR,

Defendant-Appellant.

________________________

No. 23-1887

On Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids

Before: SILER, COLE, and BUSH, Circuit Judges.

JUDGMENT

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED

that the appeal is DISMISSED for lack of jurisdiction.

ENTERED BY ORDER OF THE COURT

/s/ Kelly L. Stephens

Clerk

App.11a

OPINION AND ORDER, U.S. DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

(AUGUST 28, 2023)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

PETER LYOYA, PERSONAL REPRESENTATIVE

FOR THE ESTATE OF PATRICK LYOYA (DECEASED),

Plaintiff,

v.

CHRISTOPHER SCHURR, and

CITY OF GRAND RAPIDS,

Defendants.

________________________

No. 1:22-cv-1160

Before: Paul L. MALONEY,

United States District Judge.

OPINION AND ORDER REGARDING

DEFENDANTS’ MOTIONS TO DISMISS

This matter is before the Court on Defendants’

motions to dismiss this case (ECF Nos. 17, 18).

Because Plaintiff, in his capacity as personal representative for the estate of Patrick Lyoya, has plausibly

pleaded his claims for relief against Defendant Schurr

but not against the City of Grand Rapids, the Court

App.12a

will deny Schurr’s motion to dismiss and grant the

City’s.

I. Facts

This case arises out of the tragic shooting and

killing of Patrick Lyoya on April 4, 2022 (“Patrick”).

This incident was captured on video by multiple sources,

including Defendant Officer Christopher Schurr’s

(“Schurr”) body and dash cameras, the vehicle passenger’s cell phone, and a Ring doorbell camera on a nearby

home (ECF No. 2 at PageID.20, ¶ 34). When deciding

Rule 12(b)(6) motions to dismiss, courts are typically

not permitted to consider materials outside the pleadings. See Bell v. City of Southfield, 37 F.4th 362, 364

(6th Cir. 2022). However, courts may consider “exhibits

attached [to the complaint], public records, items

appearing in the record of the case[,] and exhibits

attached to defendant’s motion to dismiss so long as

they are referred to in the [c]omplaint and are central

to the claims contained therein,” without converting the

motion to dismiss to a motion for summary judgment.

Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,

430 (6th Cir. 2008). Moreover, the Sixth Circuit has

confirmed that it is permissible for courts to consider

video footage of the alleged incident in qualifiedimmunity cases. See Bell, 37 F.4th at 364; Bailey v.

City of Ann Arbor, 860 F.3d 382, 387 (6th Cir. 2017).

The Court may consider the video footage of the

incident in this case for two reasons: (1) the video footage

is referred to and is central to the claims contained in

the amended complaint, see Bassett, 528 F.3d at 430;

and (2) Schurr has raised the defense of qualified

immunity, and the Court should consider whether

Schurr should be relieved of the “costs and burdens of

App.13a

suit . . . at the earliest possible stage,” especially if the

video footage contradicts the claims alleged in the

complaint, see Bell, 37 F.4th at 364. Further, Plaintiff

has not objected to the consideration of the video

footage, which was attached to Defendants’ motions to

dismiss. On the other hand, Plaintiff has referred to

and attached alleged “expert affidavits” in his responses

to the motions to dismiss (ECF Nos. 26-3, 26-4, 27-3,

27-4). These affidavits—to which Defendants object

consideration of in the resolution of their motions—

are plainly outside of the four corners of the operative

complaint and cannot be considered in the adjudication

of the Rule 12(b)(6) motions. Accordingly, the following

facts are taken from Plaintiff’s amended complaint

and the accompanying video footage of the incident on

April 4, 2022.

Just after 8:00 a.m. on April 4, 2022, Schurr was

patrolling a residential neighborhood in Grand Rapids,

Michigan. During that time, Patrick was driving a tan

Nissan Altima with a friend, Aime Tuyishme, in the

passenger seat (ECF No. 2 at PageID.18, ¶ 11). Both

Patrick and Tuyishme are Black males (ECF No. 26

at PageID.385). Plaintiff pleads that his and Schurr’s

vehicles originally passed each other while going in

opposite directions, and when Schurr spotted Patrick’s

vehicle, he turned his cruiser around and began to follow

Patrick’s vehicle (ECF No. 2 at PageID.18, ¶ 13).

Schurr’s dash camera begins with Schurr backing his

vehicle up into a driveway, turning around, and following Patrick’s vehicle for a short distance before pulling

over the vehicle (see Dash Camera Footage, ECF No.

18-2 at 0:00-0:35). Patrick complied and pulled his car

over to the right side of the road (Id. at 0:28-0:36).

App.14a

Almost immediately after Schurr pulled over

Patrick’s vehicle, Patrick exited the vehicle (Id. at

0:37-0:40). Schurr twice yelled at Patrick to “stay in

the car,” but he continued to exit the vehicle and shut

its door (Id. at 0:39-0:48). Schurr proceeded to walk

toward the vehicle while continuing to tell Patrick to

“stay in the car” (see Body Camera Footage, ECF No.

18-3 at 0:43-0:50). Schurr then informed Patrick that

he was “stopping” Patrick, and asked if Patrick had a

driver’s license (Id. at 0:48-0:51). Patrick appeared

confused and asked several times, “What’d I do?” (Id.

at 0:51-1:00).1 Patrick stated that he had a license,

and Schurr asked to see it (Id. at 1:00-1:03). At that

point, Schurr informed Patrick that the license plate

on his car did not match the vehicle, which Schurr

alleges is the reason he stopped Patrick (Id. at 1:061:10). The amended complaint alleges that, because

Schurr and Patrick were driving in opposite directions,

Schurr “did not and could not have seen the back of

Patrick’s car before he whipped his patrol car around”

(ECF No. 2 at PageID.19, ¶ 19).

Patrick informed Schurr that his driver’s license

was in the vehicle, and Schurr told him to “get it for

me” (ECF No. 18-3 at 1:10-1:18). Patrick opened the

vehicle’s door and asked Tuyishme to retrieve his

license for him, and Tuyishme began to search the glove

compartment (Id. at 1:21-1:30). Tuyishme apparently

could not locate Patrick’s driver’s license, so Patrick

shut the driver’s side door and said “Alright, let me

look” (Id. at 1:40-1:44). Patrick then began to walk

toward the front of the vehicle as if he was going

1 Schurr also asked Patrick if he spoke English “upon [Patrick’s]

heavily accented, short questions” (ECF No. 18-3 at 0:58).

Patrick, still looking confused, responded that he did (Id. at 1:00).

App.15a

around to the other side of the car (Id. at 1:42-1:46).

Schurr immediately told Patrick, “nope, nope, nope,”

and grabbed Patrick’s upper right arm (Id. at 1:441:47).

At that point, the situation escalated. Schurr

attempted to apprehend Patrick, and Patrick resisted

Schurr (Id. at 1:46-1:50). Patrick broke away from

Schurr’s grasp and began to run away (Id. at 1:51).

Schurr radioed, “got one running,” and he proceeded

to chase Patrick (Id. at 1:54). Notably, not once did

Patrick verbally or physically threaten Schurr; instead,

his goal appeared to be to escape from Schurr as

quickly as possible.

Schurr quickly caught up to Patrick and tackled

him in the yard of one of the nearby homes (Id. at

1:57). Schurr told Patrick to “stop” twice, and they

struggled on the ground for several seconds (Id. at

1:58-2:05). Schurr repeatedly told Patrick to “stop”

and put his hands behind his back (Id. at 2:05-2:20).

Though Patrick said “okay” multiple times in response

to Schurr’s commands, Patrick continued to resist

Schurr and wrestle with him on the ground (Id.).

Eventually, they got up from the ground, but Schurr

continued to struggle with apprehending Patrick (Id.

at 2:20-3:05). At this point, Tuyishme had gotten out

of the vehicle and began recording the incident on his

cell phone (see Cell Phone Footage, ECF No. 18-4).

Though they continued to struggle, whether Schurr

was yanking Patrick around or whether Patrick was

actively resisting is unclear based on the video footage

(Id. at 0:37-0:50). Schurr acknowledges that, throughout the struggle, he pushed Patrick’s head into the

ground, applied knee strikes, struck Patrick on the

head, and put his weight on top of Patrick (ECF No.

App.16a

17 at PageID.215). Schurr claims that these tactics

did not deter Patrick from resisting (Id.). During the

struggle, Tuyishme continued to exclaim that Patrick

“is good” and that he was not resisting (ECF No. 18-3

at 0:37-0:53). Eventually, without warning, Schurr

deployed his TASER (ECF No. 18-3 at 3:05-3:13).

Patrick extended his left arm to deflect the TASER’s

barrel away from him and momentarily grabbed onto

it (Id.). The probe did not make contact with Patrick.

Schurr then deployed the TASER again, while still

holding onto Patrick. Again, the probe did not make

contact with Patrick (ECF No. 2 at PageID.20, ¶ 30).

Schurr repeatedly told Patrick to “let go of the

TASER” (ECF No. 18-3 at 3:15-3:30). The amended

complaint alleges that “Schurr knew that after the

second deployment[,] his Taser could only be used as

a drive-stun. Yet, he pinned Patrick to the ground using

his full body weight on Patrick’s back.” (ECF No. 2 at

PageID.20, ¶ 32). Schurr and Patrick continued to

wrestle on the ground, though Tuyishme’s cell phone

video does not capture the entire struggle (ECF No.

18-4 at 1:00-1:49). However, it does pick up Schurr

telling Patrick to let go of the TASER (Id.). Tuyishme

disagrees, stating that Patrick did not grab the

TASER (Id. at 1:43).

Eventually, Schurr is able to put his full body

weight on top of Patrick (Id. at 1:49). Schurr told

Patrick one more time to “drop the TASER” before he

got his gun out of its holster (Id. at 1:53). While on top

of Patrick, Schurr forced Patrick’s head into the

ground, and fired one shot directly into the back of his

head (Id. at 1:52-1:56). Patrick collapsed and died

immediately (Id. at 1:57). Schurr, still on top of Patrick,

then straddled his back and told Tuyishme to “get

App.17a

back” (Id. at 1:57-2:01). Out of breath, Schurr got up

from the ground and radioed that he was just involved

in a shooting (Id. at 2:10-2:20).

Following Patrick’s death, the City of Grand Rapids

(“the City”) requested an investigation and placed

Schurr on paid leave (ECF No. 26 at PageID.391). On

June 9, 2022, the Kent County Prosecutor charged

Schurr with second-degree murder. Schurr was then

terminated from the Grand Rapids Police Department

(Id.). Schurr was bound over for trial, see People v.

Schurr, No. 2022-FY-000827 (Kent Cty. Dist. Ct. Oct.

31, 2022), and Schurr subsequently filed a motion to

quash the district court’s finding that probable cause

existed to send the case to trial, which was denied, see

People v. Schurr, No. 22-010260-FC (Kent Cty. Cir. Ct.

Feb. 3, 2023). However, Schurr has appealed the denial

of the motion to quash, and the Michigan Court of

Appeals is scheduled to hear oral argument on the

case on September 6, 2023. See People v. Schurr, No.

365104 (Mich. Ct. App.).2

In December 2022, Plaintiff commenced this case

as personal representative of Patrick’s estate. Plaintiff

raises a Fourth Amendment excessive force claim, via

42 U.S.C. § 1983, and a state-law gross negligence &

wanton and willful misconduct claim against Schurr

(ECF No. 2 at PageID.21, 24). He also raises a Monell

municipal liability claim against the City of Grand

Rapids (Id. at PageID.22). Defendants have now

2 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice

of the existence and status of Schurr’s criminal proceedings in

Michigan state court. See Clark v. Stone, 998 F.3d 287, 297 n.4 (6th

Cir. 2021) (“Courts may take judicial notice of the proceedings of

other courts of record.”).

App.18a

moved to dismiss Plaintiff’s amended complaint (ECF

Nos. 17, 18).

II. Legal Standard

A complaint must contain a short and plain

statement of the claim showing how the pleader is

entitled to relief. Fed. R. Civ. P. 8(a)(2). The complaint

need not contain detailed factual allegations, but it

must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A defendant bringing a motion to dismiss for failure

to state a claim under Rule 12(b)(6) tests whether a

cognizable claim has been pled in the complaint. Scheid

v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436

(6th Cir. 1988).

To survive a motion to dismiss under Rule 12(b)(6),

the plaintiff must provide sufficient factual allegations

that, if accepted as true, are sufficient to raise a right

to relief above the speculative level, Twombly, 550

U.S. at 555, and the “claim to relief must be plausible

on its face.” Id. at 570. “A claim is plausible on its face

if the ‘plaintiff pleads factual content that allows the

court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Ctr.

For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,

369 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 556).

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

omitted). If plaintiffs do not “nudge[] their claims

across the line from conceivable to plausible, their

App.19a

complaint must be dismissed.” Twombly, 550 U.S. at

570.

When considering a motion to dismiss, a court

must accept as true all factual allegations, but need

not accept any legal conclusions. Ctr. For Bio-Ethical

Reform, 648 F.3d at 369. The Sixth Circuit has noted

that courts “may no longer accept conclusory legal

allegations that do not include specific facts necessary

to establish the cause of action.” New Albany Tractor,

Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050

(6th Cir. 2011). However, “a complaint attacked by a

Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations”; rather, “it must assert sufficient

facts to provide the defendant with ‘fair notice of what

the . . . claim is and the grounds upon which it rests.’”

Rhodes v. R&L Carriers, Inc., 491 F. App’x 579, 582

(6th Cir. 2012) (quoting Twombly, 550 U.S. at 555).

III. Schurr’s Motion to Dismiss

First, Schurr seeks dismissal of Plaintiff’s Fourth

Amendment excessive force claim, arguing that he is

entitled to qualified immunity.3 Plaintiff notes that “it

is generally inappropriate for a district court to grant

a 12(b)(6) motion to dismiss on the basis of qualified

immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th

Cir. 2015). Although a public official’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

3 The motion to dismiss does not seek dismissal of Count III of

the amended complaint, state-law gross negligence & wanton

and willful misconduct, alleged against Schurr (ECF No. 2 at

PageID.24).

App.20a

Rule 12.” See id. (internal citation omitted). Nevertheless, the Sixth Circuit has recently held that district

courts cannot “avoid ruling on the issue” of qualified

immunity when raised in a Rule 12 motion. See

Sterling Hotels, LLC v. McKay, 71 F.4th 463, 466-67 (6th

Cir. 2023). Instead, the district court must evaluate

the complaint’s factual allegations and determine

whether the official is entitled to qualified immunity.

See id. at 467. “If so, the case is over; if not, the denial

of immunity is provisional, since the court may revisit

the issue on summary judgment—where the court will

take as true only the facts as to which the plaintiff has

created a ‘genuine issue.’” Id. In sum, although it is

generally more appropriate to dismiss a claim against

a public official based on qualified immunity at the

summary judgment stage rather than the Rule 12

stage, “a district court must adjudicate a motion to

dismiss on grounds of qualified immunity.” Id.

Qualified immunity is an affirmative defense

that protects public officials from liability for civil

damages if their conduct does not violate “clearly

established statutory or constitutional rights of which

a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The defendant

“bears the burden of pleading the defense, but the

plaintiff bears the burden of showing that the defendant’s conduct violated a right so clearly established

that a reasonable official in his position would have

clearly understood that he or she was under an affirmative duty to refrain from such conduct.” Sheets v.

Mullins, 287 F.3d 581, 586 (6th Cir. 2002). In other

words, “[t]he ultimate burden of proof is on the plaintiff

to show that the defendant is not entitled to qualified

immunity.” Id. When assessing whether a law enforce-

App.21a

ment officer is entitled to qualified immunity, the

Court must perform a two-tiered inquiry: (1) whether

the officer violated the plaintiff’s constitutional rights,

and (2) whether that constitutional right was clearly

established. See Pearson, 555 U.S. at 232. If there was

no violation of a constitutional right, or even if there

was a violation of a constitutional right but the right

at issue was not clearly established at the time of the

incident, then the law enforcement officer is entitled

to qualified immunity. See Martin v. City of Broadview

Heights, 712 F.3d 951, 957 (6th Cir. 2013).

A. Constitutional Violation

Individuals have the right to be free from excessive police force pursuant to the Fourth Amendment.

See Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006).

Excessive force claims are analyzed under a “reasonableness” standard. See Schreiber v. Moe, 596 F.3d

323, 332 (6th Cir. 2010). Reasonableness is “judged

from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.”

Graham v. Connor, 490 U.S. 386, 396 (1989). “While it

is not always clear just when minimal police interference

becomes a seizure, there can be no question that

apprehension by the use of deadly force is a seizure

subject to the reasonableness requirement of the

Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1,

7 (1985) (internal citation omitted). For an officer’s

use of deadly force to be reasonable, he must have

“acted reasonably during the shooting itself and

the few moments directly preceding it.” Bouggess v.

Mattingly, 482 F.3d 886, 889 (6th Cir. 2007) (citing

Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.

1996)). The court’s primary assessment is to ask

whether “the officer ha[d] probable cause to believe

App.22a

that the suspect pose[d] a threat of serious physical

harm, either to the officer or to others.” Garner, 471 U.S.

at 11. The Sixth Circuit has “authorized the use of

deadly force ‘only in rare circumstances.’” Palma v.

Johns, 27 F.4th 419, 432 (6th Cir. 2022) (quoting Jacobs

v. Alam, 915 F.3d 1028, 1040 (6th Cir. 2019)).

To assess objective reasonableness, even in deadly

force cases, the Sixth Circuit follows the three-factor

test laid out in Graham. See Estate of Hill v. Miracle,

853 F.3d 306, 312-13 (6th Cir. 2017); see also Bouggess,

482 F.3d at 889. That is, “(1) the severity of the crime

at issue; (2) whether the suspect poses an immediate

threat to the safety of the officers or others; and (3)

whether he is actively resisting arrest or attempting

to evade arrest by flight.” Id. (quoting Graham, 490

U.S. at 397) (internal quotation marks omitted). “These

factors are not an exhaustive list because the ultimate

question is whether the totality of the circumstances

justifies the particular sort of seizure that took place.”

LaPlante v. City of Battle Creek, 39 F.4th 572, 579 (6th

Cir. 2022) (cleaned up). Using these three factors, it is

this Court’s job to “determine whether [Schurr] had

an objectively reasonable belief that [Patrick] posed

an imminent threat of serious physical harm to him

or to others. If [Schurr] did not have such a belief, then

his use of deadly force violated the Fourth Amendment.”

Bouggess, 482 F.3d at 890.

Beginning with the first Graham factor, the

severity of the crime at issue, Schurr likely had

probable cause to suspect Patrick had committed two

crimes: a license plate violation and resisting and

obstructing. Schurr claims that the license plate on

Patrick’s vehicle did not match the vehicle, but as

Plaintiff correctly asserts, this fact has not yet been

App.23a

proven given the lack of discovery (see ECF No. 26 at

PageID.403). But even assuming arguendo that the

license plate on Patrick’s vehicle did not belong to the

vehicle, it is only a misdemeanor to “carry or display

upon a vehicle any . . . registration plate not issued for

the vehicle. . . . ” Mich. Comp. Laws § 257.256(1), (2).

Thus, this crime was minimal in severity. See, e.g.,

Carrico v. Knox Cty. Sheriff’s Office, No. 2:16-cv-502,

2018 WL 3193217, at *6 (S.D. Ohio June 28, 2018)

(holding that the crime at issue, a misdemeanor, was

“minimal” in severity); D’Angelo v. Clinton Twp., No.

10-12195, 2011 WL 4888904, at *7 (E.D. Mich. Oct. 13,

2021) (“[T]he severity of the crime at issue only amounts

to a misdemeanor.”).

Conversely, resisting and obstructing a police

officer is a felony. See Mich. Comp. Laws § 750.81d.

True, felonies are severe crimes, but resisting and

obstructing is lower on the severity scale than many

other felonies. See Jackson v. Dupuis, No. 15-10678,

2018 WL 1122004, at *6 (E.D. Mich. Mar. 1, 2018)

(finding that committing a carjacking at gunpoint is a

serious felony); cf. Blakemore v. City of Alpena, No. 20cv-10248, 2021 WL 8323655, at *3 (E.D. Mich. June

10, 2021) (“Disorderly person and resisting and

obstructing are not severe crimes that would require

slamming Plaintiff’s head and shoulder into the wall

when he was being cooperative.”).

Nevertheless, given that Schurr had probable

cause to believe that Patrick committed one minor

crime and one severe crime, the Court finds that the

first Graham factor is neutral.

Moving onto the second Graham factor, whether

the suspect posed an immediate threat to the safety of

the officers or others, the Court declines to make a

App.24a

determination as to this factor at this early stage in

the case. At the outset, based upon the Court’s review

of the video footage as well as the pleaded allegations,

it appears that Patrick—who was unarmed—was

attempting to run away from Schurr before Schurr

tackled him (see Dash Camera Footage, ECF No. 18-2

at 1:49-1:57); (ECF No. 2 at PageID.19, ¶ 22). Unlike

other deadly force cases where courts have found that

the suspect posed a threat to the officers, Patrick was

not running toward Schurr, nor was he pointing a

weapon at Schurr. See, e.g., Thomas v. City of Columbus,

854 F.3d 361, 365-67 (6th Cir. 2017) (finding that an

officer acted reasonably when he fatally shot an

individual—who turned out to be the victim of a burglary

and had disarmed the real perpetrator—running

toward him with a gun in hand); Hicks v. Scott, 958

F.3d 421, 435-37 (6th Cir. 2020) (finding that an

officer acted reasonably when she fatally shot an

individual who suddenly appeared behind a door with

a rifle pointed at her in close proximity). Based on

these facts alone, the Court would be inclined to find

that it was not reasonable for Schurr to believe that

Patrick imposed an immediate threat. See, e.g.,

Bouggess, 482 F.3d at 890 (“After Newby had broken

free from Mattingly’s custody and had run about ten

feet from Mattingly, did Mattingly have probable

cause to believe that Newby posed an imminent danger

of serious physical harm to him or to others? Examining

the information available to Mattingly at the time,

precedent binding on this court, and viewing the facts

in the light most favorable to the Bouggess, it is clear

that Mattingly did not have probable cause sufficient

to open fire.”); Garner, 471 U.S. at 11 (“The use of

deadly force to prevent the escape of all felony suspects,

whatever the circumstances, is constitutionally unrea-

App.25a

sonable. It is not better that all felony suspects die than

that they escape.”); Palma, 27 F.4th at 430 (“Palma’s

mere failure to follow orders would not lead a reasonable

officer to believe that Palma posed a danger.”).

However, as the parties are well aware, the incident did not end there. Schurr contends that Patrick

imposed an immediate threat to Schurr because he

“armed himself with the Taser” (ECF No. 17 at

PageID.250). But this conclusion is far too premature.

The video footage is all but clear as to whether Patrick

ever “armed himself” with Schurr’s TASER, let alone

if he ever even gained temporary possession of it.

Although the video footage shows both Schurr and

Patrick’s hands on the TASER at the same time, the

Court cannot definitively conclude, based on the video

footage, that Patrick “grabbed” or “armed himself” with

the TASER (see ECF No. 18-4 at 1:00-1:49). Nor can

the Court conclude that Patrick did not grab the

TASER. Indeed, Plaintiff’s amended complaint pleads

that Patrick “reflexively extended his left arm to

deflect the Taser’s barrel away from him to protect

himself” while “the Taser remained firmly within the

grip of Schurr’s right hand” (ECF No. 2 at PageID.20,

QQ 28-29). The Court must accept this allegation as

true if it does not contradict the video footage, but as

the Court has indicated, the video footage is unclear

as to the issue of Patrick’s control or grabbing of the

TASER. Further, right before Schurr fatally shot

Patrick, he appeared to have control over Patrick by

sitting on top of him and forcing his head into the

ground (see ECF No. 18-4 at 1:52-1:56). If Schurr had

control over or had subdued Patrick in “the few

moments directly preceding” the shooting, then Patrick

App.26a

likely was not a threat to Schurr. See Bouggess, 482

F.3d at 889.

Therefore, at this preliminary stage in the case

and prior to discovery, the Court cannot make a determination as to whether Patrick posed a threat to

Schurr nor a determination as to the weight of the

second Graham factor.

Finally, the third Graham factor, whether Patrick

was actively resisting arrest or attempting to evade

arrest by flight, weighs slightly in favor of reasonableness. Plaintiff does not dispute that Patrick “passively

resisted” Schurr’s commands (ECF No. 2 at PageID.21,

¶ 35). Notably though, “Patrick never voiced a threat

or returned a physical blow, in any form, to Schurr”

(Id.). The video footage is clear that Patrick resisted

Schurr’s lawful commands and attempted to flee. But

despite his resistance, “[a] suspect’s flight on foot,

without more, cannot justify the use of deadly force.”

Bouggess, 482 F.3d at 892. Therefore, given Patrick’s

resistance, but also given that this resistance was met

with deadly force, the Court finds that this factor

slightly weighs toward reasonableness.

Looking at the totality of the circumstances, the

Court finds that the amended complaint, coupled with

the video footage, plausibly pleads a constitutional violation. True, Schurr had probable cause to believe that

Patrick may have committed at least one crime, and it

appears that Patrick attempted to flee. However, Patrick

was initially unarmed and appeared to be confused by

the situation. See Garner, 471 U.S. at 11 (“It is not better

that all felony suspects die than that they escape.”).

And at this stage in the case, questions of fact remain

as to whether Patrick “grabbed” Schurr’s TASER. See

Jacobs, 915 F.3d at 1040 (“Whether a suspect has a

App.27a

weapon constitutes just one consideration in assessing

the totality of the circumstances.”). With, that outstanding question, Patrick’s behavior, accepting the

facts as pled and as shown in the video footage, may

not have justified the use of deadly force. See Garner,

U.S. at 11; Palma, 27 F.4th at 432 (“A police officer

may not seize an unarmed, nondangerous suspect by

shooting him dead.”).

Based on the balancing of the Graham factors

and the totality of the circumstances, the Court finds

that Plaintiff has plausibly pleaded a violation of

Patrick’s Fourth Amendment rights.

B. Clearly Established Right

Despite the plausibly alleged violation of Patrick’s

constitutional rights, Schurr is still entitled to qualified

immunity if, at the time the incident occurred, the

right at issue was not clearly established. See Latits v.

Phillips, 878 F.3d 541, 547 (6th Cir. 2017) (“Public

officials are entitled to qualified immunity from suits

for civil damages if either the official’s conduct did not

violate a constitutional right or if that right was not

clearly established at the time of the conduct.”) (emphasis added). “To defeat qualified immunity, the plaintiff

must [also] show that the defendant had notice that

the manner in which the force was used had been previously proscribed[.]” Livermore v. Lubelan, 476 F.3d

397, 403-04 (6th Cir. 2007). To conclude that a constitutional right is “clearly established,” under the second

prong of the qualified immunity analysis, the plaintiff

must show that “[t]he contours of the right [are] sufficiently clear [such] that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

App.28a

In 1985, the Supreme Court held that “[deadly]

force may not be used unless it is necessary to prevent

the escape and the officer has probable cause to believe

that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” Garner,

471 U.S. at 3. Admittedly, the Supreme Court has

warned that Garner does not, by itself, “create clearly

established law outside an obvious case.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (internal quotation

marks omitted). However, Garner triggered the establishment of clear case law in the Circuit Courts of

Appeals, which followed the general holding of Garner.

See, e.g., Jacobs, 915 F.3d at 1040 (quoting King v.

Taylor, 694 F.3d 650, 664 (6th Cir. 2012)) (“It has been

clearly established in this circuit for some time that

individuals have a right not to be shot unless they are

perceived as posing a threat to officers or others.”);

Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015)

(“It is axiomatic that individuals have a clearly

established right not to be shot absent probable cause

to believe that they pose a threat of serious physical

harm, either to the officer or to others.”) (cleaned up).

Further, it is also clearly established that officers may

not use “lethal force merely because someone disobeys

the officer’s orders.” Palma, 27 F.4th at 443 (citing

Wright v. City of Euclid, 962 F.3d 852, 868 (6th Cir.

2020)).

For the reasons explained above, prior to discovery,

the Court declines to determine whether Patrick

posed a threat to Schurr. The amended complaint

pleads that Patrick was not a threat (see ECF No. 2 at

PageID.20, ¶¶ 28-33), and the video footage is unclear

as to this issue (see ECF No. 18-4 at 1:00-1:49). But if

Patrick did not pose a threat, then Schurr was certainly

App.29a

not entitled to use deadly force, and in turn, is not

entitled to qualified immunity.

In sum, at this stage in the case, the Court cannot

find that Schurr is protected by qualified immunity.

Because Plaintiff has plausibly pleaded a violation of

Patrick’s Fourth Amendment rights that were clearly

established at the time of his death, the Court will

deny Schurr’s motion to dismiss.4

IV. The City’s Motion to Dismiss

Count II of the amended complaint alleges a

Monell municipal liability claim against the City (ECF

No. 2 at PageID.22). To properly allege a municipal

liability claim under § 1983, the plaintiff must demonstrate that the alleged federal violation occurred

because of a municipal custom or policy. See Monell v.

Dept’of Social Servs., 436 U.S. 658, 694 (1978); Gambrel

v. Knox Cty., 25 F.4th 391, 408 (6th Cir. 2022) (“When

a municipal employee harms a private party, . . . that

party must connect the employee’s conduct to a municipal ‘policy’ or ‘custom.’”). A plaintiff can make this

showing by demonstrating one of the following: “(1)

the existence of an illegal official policy or legislative

enactment; (2) that an official with final decision

making authority ratified illegal actions; (3) the

4 The City also argues that Plaintiff has failed to plead a constitutional violation, noting that “[a] municipality ‘can only be held

liable if there is a showing of an underlying constitutional violation

by’ its officials.” (ECF No. 18 at PageID.287) (quoting S.J. v.

Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 452 (6th Cir.

2021)). However, for the reasons explained in this Section, the

Court finds that Plaintiff has plausibly pleaded violation of

Patrick’s Fourth Amendment rights, and therefore, the Court

rejects the City’s argument as well.

App.30a

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or

acquiescence of federal rights violations.” Burgess v.

Fischer, 735 F.3d 462, 478 (6th Cir. 2013). Importantly,

a municipality cannot be liable via respondeat superior

simply because its employees or agents violated a

federal right. See id. at 478 (quoting Monell, 436 U.S.

at 694) (“A municipality ‘may not be sued under

§ 1983 for an injury inflicted solely by its employees

or agents.’”).

Plaintiff alleges that the City (1) failed to train,

supervise, and discipline its officers on the use of

excessive force, and (2) had an ongoing practice or

custom of racial discrimination within the police department (ECF No. 2 at PageID.23, ¶ 55). The City argues

that the amended complaint “broadly and conclusively”

alleges the City’s failure to train and unconstitutional

custom, which is insufficient to plead proper Monell

claims (ECF No. 18 at PageID.299). Although Plaintiff

has sufficiently pleaded factual allegations to support

the first three elements of these two types of Monell

claims, Plaintiff has not alleged any facts to support

the causation element. Thus, the Court will grant the

City’s motion to dismiss.

A. Failure to Train or Supervise

First, Plaintiff argues that the City failed to adequately train its law enforcement officers on the use

of force (ECF No. 2 at PageID.22-23). To properly

bring a failure-to-train claim under Monell, the plaintiff

must plead (1) a clear and persistent pattern of illegal

activity, (2) which the municipality knew or should

have known about, (3) yet remained deliberately

indifferent to, and (4) that the municipality’s custom

App.31a

was the cause of the deprivation of the plaintiff’s

constitutional rights. Bickerstaff v. Lucarelli, 830 F.3d

388, 402 (6th Cir. 2016); see also Gambrel, 25 F.4th at

408 (explaining that a plaintiff bringing a failure-totrain Monell claim must prove “demanding elements”).

With respect to the first element, a clear and

persistent pattern of activity, municipal liability arises

from a history of misconduct that created “notice that

the training in this particular area was deficient and

likely to cause injury.” Burgess, 735 F.3d at 478. The

Sixth Circuit has found that sufficient evidence of a

clear and persistent pattern of illegal activity existed

where at least fourteen similar incidents had occurred,

Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1248 (6th

Cir. 1989), but that a county’s knowledge of only three

similar incidents could not establish notice of habitually

unconstitutional conduct, D’Ambrosio v. Marino, 747

F.3d 378, 388 (6th Cir. 2014). Here, Plaintiff alleges

that from June 1, 2015, until May 21, 2020, the City

received seventy-nine citizen complaints for use of

excessive force by Grand Rapids Police Department

(“GRPD”) officers (ECF No. 2 at PageID.23, ¶ 51). The

Court must accept this allegation as true for purposes

of resolving the motion to dismiss. Seventy-nine

instances of verified excessive force would certainly be

sufficient to constitute a “clear and persistent pattern

of illegal activity.” See Leach, 891 F.2d at 1248. Moreover, Plaintiff pleads that these are just the complaints

that the City received. In any event, this allegation is

sufficient to establish both a pattern of illegal activity

as well as that the City knew about or should have

known about such illegal activity.

Moving onto the third element of a Monell failureto-train claim, “[t]o show this deliberate indifference,

App.32a

a plaintiff must prove that the violation of a clearly

established right was a ‘known or obvious consequence’

of the lack of training or supervision.” Gambrel, 25

F.4th at 408 (quoting Connick v. Thompson, 563 U.S.

51, 61 (2011)). At this stage in the case, Plaintiff must

merely plead that the GRPD’s use of excessive force

was a known or obvious consequence of the department’s

lack of training. In the Court’s judgment, paragraph

52 of the amended complaint sufficiently meets this

pleading requirement (ECF No. 2 at PageID.23, ¶ 52).

Plaintiff pleads that the City merely gives a “slap on

the wrist” to officers who use excessive force—if the

City even decides to punish these officers (Id.). According

to Plaintiff, this failure to sufficiently supervise and

discipline officers when necessary does not “discourage

future violations of department policies and constitutional rights” (Id.). Thus, failing to discourage the use

of excessive force will likely lead to the “known or

obvious consequence” of GRPD officers using excessive

force. For purposes of this motion to dismiss, the Court

finds that Plaintiff’s amended complaint sufficiently

pleads deliberate indifference by the City.

Finally, Plaintiff must plead causation between

the City’s failure to train or supervise and Schurr’s

use of alleged excessive force on Patrick. See Jackson

v. City of Cleveland, 925 F.3d 793, 834 (6th Cir. 2019)

(“In order to show that a municipality is liable for a

failure to train its employees, a plaintiff must establish

that . . . the inadequacy was closely related to or actually

caused the injury.”) (internal quotation marks omitted);

Gambrel, 25 F.4th at 408 09 (explaining that the causation element of a Monell failure-to-train claim requires

a showing of both but-for and proximate causation).

This is where Plaintiff’s amended complaint falls

App.33a

short. The complaint conclusively alleges that the City’s

failure to train its law enforcement officers on the

proper use of force “was the cause and moving force

behind the violations and harm suffered” by Patrick

(Id. at PageID.22, ¶ 49). However, it does not explain

how the City’s inadequate training regarding use of

force caused Schurr to allegedly use excessive force on

Patrick, nor that the City could reasonably foresee

Schurr using excessive force due to a lack of training.

See Gambrel, 25 F.4th at 409. In other words, the

amended complaint fails to allege specific facts supporting causation. The complaint instead focuses on the

City’s treatment of Schurr after he allegedly used

excessive force, not before (see ECF No. 2 at PageID.23,

¶ 53-54). Indeed, the complaint fails to identify any

connection between the lack of training and Schurr’s

specific use of force on Patrick.

Because Plaintiff has failed to plead sufficient

facts supporting the conclusion that the City’s lack of

training was the cause of the deprivation of Patrick’s

constitutional rights, the Court finds that Plaintiff’s

Monell claim for failure to train does not survive the

City’s motion to dismiss.

B. Custom or Tolerance of Federal Rights

Violations

Second, Plaintiff also raises a Monell claim for the

City’s ongoing practice or custom of racial discrimination within the GRPD (ECF No. 2 at PageID.23-24).

Specifically, Plaintiff alleges that Black drivers are

more than twice as likely to be stopped by GRPD officers,

that the Michigan Department of Civil Rights (“the

Department”) has announced an investigation into

complaints of racial discrimination by GRPD officers,

App.34a

and that the Department has received over sixty

complaints related to racial profiling and disparate

treatment by GRPD officers (Id. at PageID.24, ¶¶ 5657).

The elements of this type of Monell claim are

essentially the same as the elements discussed above

for a Monell failure-to-train claim: “(1) the existence

of a clear and persistent pattern of [illegal activity];

(2) notice or constructive notice on the part of the

[defendant]; (3) the [defendant’s] tacit approval of the

unconstitutional conduct, such that their deliberate

indifference in their failure to act can be said to

amount to an official policy of inaction; and (4) that

the [defendant’s] custom was the ‘moving force’ or

direct causal link in the constitutional deprivation.”

Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th

Cir. 2005).

For the same reasons discussed above, Plaintiff

has failed to plead sufficient facts supporting the

causation element of this Monell claim. Despite properly

alleging a pattern, as well as notice to the City, of

racial discrimination—the practice to pull over twice

as many Black drivers as white drivers in addition to

the Department receiving sixty complaints related to

racial profiling by the GRPD—and the City’s deliberate

indifference to this policy, the complaint lacks facts

supporting causation (ECF No. 2 at PageID.24). The

complaint fails to plead any link between this alleged

custom of racial discrimination and Schurr’s allegedly

discriminatory actions toward Patrick. Instead, it perfunctorily states, “Tragically and predictably, [the]

City’s unconstitutional policies, procedures, protocols,

and customs, are the moving force behind the constitutional violations complained of here and Patrick’s

App.35a

death” (Id. ¶ 58). This allegation contains no facts

regarding causation—which the Court would accept

as true—in order to allow this claim to proceed. Thus,

the Court will dismiss the entirety of Count II,

Plaintiff’s Monell claim, alleged against the City.

V. Conclusion

The Court finds that Plaintiff’s operative complaint

plausibly pleads sufficient facts supporting his claims

for relief against Schurr, but not the City. Accordingly,

IT IS HEREBY ORDERED that Defendant

Schurr’s motion to dismiss (ECF No. 17) is DENIED.

IT IS FURTHER ORDERED that the City’s

motion to dismiss (ECF No. 18) is GRANTED.

IT IS SO ORDERED.

/s/ Paul L. Maloney

United States District Judge

Date: August 28, 2023

App.36a

ORDER DENYING PETITION FOR

REHEARING EN BANC, U.S. COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(OCTOBER 21, 2024)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

PETER LYOYA, Personal Representative for the

estate of Patrick Lyoya (deceased),

Plaintiff-Appellee,

v.

CHRISTOPHER SCHURR,

Defendant-Appellant.

________________________

No. 23-1887

Before: SILER, COLE, and BUSH, Circuit Judges.

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. The petition then

was circulated to the full court. No judge has requested

a vote on the suggestion for rehearing en banc.

App.37a

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Kelly L. Stephens

Clerk