Lori McColman v. St. Clair County

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0400n.06
No. 10-2567
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LORI MARIE McCOLMAN, ) FILED
) Apr 12, 2012
Plaintiff-Appellant, )
) LEONARD GREEN, Clerk
v. )
)
ST. CLAIR COUNTY, ST. CLAIR )
COUNTY SHERIFF’S DEPARTMENT, ) ON APPEAL FROM THE UNITED
and SERGEANT HERNANDEZ, ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
Defendants, )
)
and )
)
DEPUTY GREG DOAN, )
)
Defendant-Appellee. )
Before: GIBBONS, GRIFFIN and DONALD, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Lori McColman, a double amputee
with below-the-knee prosthetics, sued St. Clair County, its Sheriff’s Department, and two
St. Clair County police officers alleging that the officers used excessive force and were
grossly negligent in connection with her arrest for drunk driving. McColman brought claims
for deprivation of her civil rights and use of excessive force in violation of 42 U.S.C. § 1983;
assault and battery; and gross negligence pursuant to Michigan Compiled Laws § 691.1407.
After the parties stipulated to the dismissal of all defendants except St. Clair County
Sheriff’s Deputy Greg Doan, Doan moved for summary judgment. The district court granted
Doan’s motion, concluding that Doan did not use excessive force when he pulled McColman
into the back seat of his police vehicle after her arrest and that, even if he did, he was entitled
to qualified immunity. The district court further held that Doan was not grossly negligent
in placing McColman sideways in the back seat of the police vehicle and that Doan was not
grossly negligent when he left McColman sitting on a gurney in the hospital emergency
room under the supervision of another officer. McColman appeals. For the reasons that
follow, we affirm the judgment of the district court.
I.
Lori McColman, a double, below-the-knee amputee who ambulates with prosthetics,
was arrested for drunk driving on August 28, 2008. The week before her drunk driving
arrest, police officers were called to the house of McColman’s husband, Donald McColman,
Jr., to respond to a domestic dispute. Doan and Sergeant Joseph Hernandez responded to the
call and interviewed McColman and her husband. From these interviews, they learned that
McColman had set the couple’s marriage certificate on fire and had pushed her husband, and
that he knocked her down, causing her to fall, hit her head, and black out. McColman’s
husband alleges that she only pretended to black out, at which point he called 9-1-1. The
officers separated the couple for the night, sending McColman to her own home.
In the early morning hours of August 28, 2008, Doan observed McColman’s car
weaving between lanes, pulled her over, and gave her several field sobriety tests.
McColman performed poorly on at least one of these tests. Doan then administered a
breathalyzer test which revealed that McColman’s blood alcohol level was .18, which was
over the legal limit. He told McColman that she was being arrested for drunk driving and
directed her to place her hands behind her back. Doan then handcuffed McColman.
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McColman testified that Doan placed the handcuffs on her “[w]ay too tight[ly,]” causing her
to scream out in pain, “I’m hurting. You’re hurting me, you’re hurting me.” She further
testified that the handcuffs were so tight that they were cutting into the skin on her wrists,
but Doan did not adjust the handcuffs in response to her complaint. Doan testified that he
checked the tightness of the handcuffs by inserting a finger along McColman’s wrist bone,
determined that they were not too tight, and left them as they were.
Doan then sat McColman on the back seat of the police car, and asked her to scoot
into the vehicle. McColman told Doan she couldn’t “scoot” into the back seat because she
needed her hands to propel her. Doan then walked around to the other side of the car,
opened the door, grabbed McColman by her upper arms, and pulled her across the seat and
into the car. McColman testified that she was “yanked . . . across the seat” in a manner that
“caused excruciating pain.” When Doan pulled McColman into the back seat, one of her
prosthetic legs fell off, but Doan reattached it to her residual limb. At the time of her arrest,
McColman weighed approximately 170 pounds.
Doan testified that he left McColman sitting sideways on the back seat because he
thought that she would have difficulty getting her prosthetic legs around and underneath the
cage of the vehicle. Doan began to drive McColman to the jail, but as a result of her sitting
sideways on the back seat, when Doan made a right turn, McColman fell over and hit her
head on the car seat or door. McColman testified that she blacked out from the extreme pain
she was feeling in her wrists—from the handcuffs—and from hitting her head. Doan heard
a thud in the back seat, stopped the police car, and checked on McColman. McColman was
breathing and moving, but not talking. Because McColman was unresponsive, Doan took
her to the hospital.
3
Doan radioed for backup to meet him at the hospital, and Deputy Martin Stoyan was
dispatched to assist Doan. Doan testified that he radioed for backup to avoid having to leave
McColman unattended while he was doing paperwork at the hospital. When they reached
the hospital, Doan and Stoyan helped McColman onto a gurney and an orderly took her into
an examination room. McColman testified that she was then left unattended in the
examination room with the police officers standing outside the door of the room.
At some point, McColman fell off the gurney and hit her right elbow on the floor.
She testified that one of her prosthetic legs was slipping off, and, as she was trying to hold
it on with her other leg, she fell off the gurney after she lost her balance due to her hands
being handcuffed behind her back.
McColman testified that after her fall, she experienced excruciating pain in her wrists
and hands, which were going numb, and in her right elbow. Despite her complaints of pain,
McColman was medically cleared to go to jail, and Doan transported her there. McColman’s
handcuffs were only removed when she reached the jail.
McColman saw two doctors in the aftermath of the arrest, one of whom testified that
her pre-existing carpal tunnel syndrome was exacerbated as a result of the way she was
handcuffed.
II.
Doan moved for summary judgment, and the district court held a hearing on the
motion on September 29, 2010.1 At the hearing, Doan argued that McColman had never
1
Prior to the hearing, the parties stipulated to the dismissal with prejudice of all defendants
except Doan, and to the dismissal of Count IV of the Complaint, which alleged that St. Clair County
and the St. Clair County Sheriff’s Department violated McColman’s civil rights in violation of 42
U.S.C. § 1983 by failing to properly supervise, monitor, and train their police officers and by
4
pled a claim that Doan used excessive force in handcuffing her. Although her complaint
contained allegations of excessive force, it did not allege that Doan subjected her to
excessive force by handcuffing her too tightly. The court agreed that there was no excessive
force handcuffing claim pled in the complaint and that such a claim was therefore not before
the court. McColman argued that Doan was on notice, through discovery, that McColman
was pursuing an excessive force claim related to her handcuffing and orally moved to amend
the complaint to allege this claim. The district court declined to grant the motion orally,
directing McColman’s counsel to file a motion if he wished to amend the complaint.
McColman’s counsel indicated that he would move for leave to amend. However, more than
one month later, when the district court granted Doan’s motion for summary judgment,
McColman’s counsel still had not moved for leave to amend the complaint.
In its opinion granting Doan’s motion for summary judgment, the district court held
that McColman’s excessive force handcuffing claim was not before the court; that Doan did
not use excessive force when he pulled McColman across the back seat of the police car, and
that even if he did, he was entitled to qualified immunity; that Doan was not grossly
negligent when he situated McColman sideways in the back seat or when he left McColman
under Stoyan’s supervision at the hospital; and that Doan was entitled to governmental
immunity on the state law assault and battery claims. Accordingly, the district court entered
summary judgment in Doan’s favor. McColman appealed but abandoned her assault and
battery claims on appeal.
III.
establishing a pattern and practice of violating their citizens’ constitutional rights.
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We review a district court’s grant of summary judgment de novo. Alspaugh v.
McConnell, 643 F.3d 162, 168 (6th Cir. 2011). “Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, ‘show that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.’” Binay v. Bettendorf, 601 F.3d 640,
646 (6th Cir. 2010) (quoting Fed. R. Civ. P. 56(c)). The moving party bears the burden of
proving that no genuine issue of material fact exists, but it can discharge that burden by
showing “that there is an absence of evidence to support the nonmoving party’s case.”
Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (internal quotation marks
omitted). In reviewing a summary judgment motion, we view the evidence and the
inferences therefrom “in the light most favorable to the non-moving party.” Id. (citing
Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A.
McColman argues that the complaint properly pled an excessive force claim based
on handcuffing. We do not agree.
“[T]he pleading standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks
omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Id. (internal quotation marks omitted). “Nor does
a complaint suffice if it tenders naked assertions devoid of further factual enhancement.”
Id. (internal quotation marks and alteration omitted). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
6
alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 1950 (internal
quotation marks and alteration omitted).
McColman cites paragraphs 10–11 and 22–23 of her complaint as those that contain
sufficient factual and legal allegations to plead her excessive force handcuffing claim.
Paragraph 10 states, in full, “That the officers determined that an arrest should be made for
operating while intoxicated. The Plaintiff was handcuffed, hands behind her back, and then
ordered to get into the police vehicle.” (R. 1, at ¶ 10.) Paragraph 11 merely alleges that
because McColman is a double amputee she could not get into the police car “without
assistance while her hands were handcuffed behind her back.” (Id., at ¶ 11.) These
paragraphs describe the fact that McColman was handcuffed, but nothing in these paragraphs
can be construed as an allegation that Doan used excessive force in placing handcuffs too
tightly on McColman’s wrists.
Paragraphs 22 and 23 of the complaint allege that Doan violated 42 U.S.C. § 1983
and the Constitution by using excessive force and that a reasonable officer in his position
would have known he was violating McColman’s constitutional rights. (Id., at ¶¶ 22–23.)
These paragraphs do not even mention handcuffing but merely recite the legal elements of
an excessive force claim.
The well-pleaded facts of McColman’s complaint do not permit an inference that
Doan violated 42 U.S.C. § 1983 by using excessive force in handcuffing McColman too
tightly. Accordingly, the district court correctly concluded that McColman failed to plead
an excessive force handcuffing claim.
Further, the handcuffing claim was not tried by consent, as McColman argues.
Federal Rule of Civil Procedure 15(b)(2) provides:
7
When an issue not raised by the pleadings is tried by the parties’ express or
implied consent, it must be treated in all respects as if raised in the pleadings.
A party may move—at any time, even after judgment—to amend the
pleadings to conform them to the evidence and to raise an unpleaded issue.
But failure to amend does not affect the result of the trial of that issue.
By its plain terms, Rule 15(b)(2) only applies to claims that are tried, and this case
was disposed of on summary judgment. Further, Doan did not consent to trying the
handcuffing claim—he objected to the claim in both his motion for summary judgment and
at oral argument on that motion. Cf. Siler v. Webber, 443 F. App’x 50, 58 (6th Cir. 2011)
(holding that an issue cannot be tried by the parties’ consent pursuant to Rule 15(b)(2) where
one of the parties opposes trial by moving for summary judgment).
The fact that Doan would not have been prejudiced or surprised by an amendment
is irrelevant, given that McColman never moved for leave to amend her complaint. The
district court properly declined to consider a claim that was not pled.
B.
McColman next argues that the way in which Doan pulled her across the back seat
of the police vehicle constituted excessive force in violation of 42 U.S.C. § 1983. We
conclude that Dona’s use of force was reasonable.
The Fourth Amendment prohibits officers from using excessive force in the course
of making an arrest. Graham v. Connor, 490 U.S. 386, 394–95 (1989). “To determine
whether a constitutional violation based on excessive force has occurred, this Court applies
the objective-reasonableness standard, which depends on the facts and circumstances of each
case viewed from the perspective of a reasonable officer on the scene and not with 20/20
hindsight.” Binay, 601 F.3d at 647 (internal quotations marks omitted).
8
Factors relevant to the reasonableness inquiry 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.” Graham,
490 U.S. at 396.
As we have explained:
Not every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chamber, violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.
Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir. 2004) (emphasis omitted) (quoting Graham,
490 U.S. at 396–97).
In granting Doan’s motion for summary judgment, the district court noted that
McColman was arrested for driving while under the influence of alcohol, “an unquestionably
serious crime which can, under certain circumstances, lead to a volatile situation.” The court
acknowledged that McColman did not actively resist arrest and that the manner in which
Doan pulled her into the car caused her prosthetic leg to fall off and caused bruising on her
arms. However, the district court concluded that Doan’s pulling McColman into the back
seat was not objectively unreasonable because his previous encounter with her after her
domestic dispute apprised him of her aggressive behavior, and he had to use some force to
get a woman of her weight into the police vehicle. Doan did not use “gratuitous violence”
or “gratuitous force” to get McColman into the car. The court also concluded that even if
Doan’s use of force was objectively unreasonable, he was entitled to qualified immunity.
9
The district court’s analysis is sound. Doan knew that McColman had previously set
a fire in her husband’s home, suggesting she was inclined toward dangerous behavior when
she was upset. He also knew that she had been driving while intoxicated. The severity of
the crime justified keeping McColman in handcuffs after she was arrested, especially given
Doan’s knowledge that McColman could present a threat to the safety of others. See
Graham, 490 U.S. at 396. Thus, Doan’s decision not to remove McColman’s handcuffs was
objectively reasonable. McColman told Doan she could not scoot into the back seat
of the police car without the use of her hands. Thus, Doan, having made a reasonable
decision not to remove McColman’s handcuffs, had to apply some force to get her into the
back seat so that he could close the door and transport her to jail. See Graham, 490 U.S. at
396 (holding that a government officer has the right to use some degree of physical coercion
to effect an arrest). Grabbing her by her upper arms and pulling McColman across the seat
was not a gratuitous use of force, even if it did result in some minor bruising to McColman’s
arms. See Miller v. Sanilac Cnty., 606 F.3d 240, 252 (6th Cir. 2010) (“In determining
whether there has been a violation of the Fourth Amendment, we consider not the ‘extent of
the injury inflicted’ but whether an officer subjects a detainee to ‘gratuitous violence.’”
(quoting Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009))). Doan
applied force sufficient, but not greater than necessary, to get McColman into the vehicle
without removing her handcuffs. Accordingly, Doan did not use excessive force in pulling
McColman across the back seat of the vehicle.
C.
McColman next argues that the district court erred in holding that Doan was not
grossly negligent in placing McColman in the back seat of the police vehicle in a manner
10
that allowed her to fall and hit her head when he turned a corner. She also argues that the
district court erred in concluding that Doan was not grossly negligent in leaving her
unattended on the gurney at the hospital, from which she fell while she was trying to keep
one prosthetic leg on with the other.
Under Michigan’s Governmental Immunity Act, Mich. Comp. Laws § 691.1407, “a
governmental employee is not liable in tort for personal injuries so long as the employee’s
‘conduct does not amount to gross negligence that is the proximate cause of the injury or
damage.’” Oliver v. Smith, 715 N.W.2d 314, 317 (Mich. Ct. App. 2006) (quoting Mich.
Comp. Laws § 691.1407(2)(c)). Under Michigan law, a police officer may be held liable in
tort only if “the officer has utilized wanton or malicious conduct or demonstrated a reckless
indifference to the common dictates of humanity.” Bennett v. Krakowski, __ F.3d __, No.
10-2455, 2011 WL 5604055, at *6 (6th Cir. Nov. 18, 2011) (internal quotation marks
omitted). Further, tort liability will not lie unless the officer’s conduct “is the proximate
cause of the injury or damage.” Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 408 (6th
Cir. 2007) (internal quotation marks omitted). “[T]he Michigan Supreme Court [has]
defined ‘the proximate cause’ under § 691.1407(2)(c) to mean ‘the one most immediate,
efficient, and direct cause preceding an injury.’” Id. (quoting Robinson v. City of Detroit,
613 N.W.2d 307, 317 (Mich. 2000)).
Viewing the facts in the light most favorable to McColman, Doan was not grossly
negligent in placing McColman sideways in the back seat of the police car. Doan placed
McColman sideways because he believed she would have difficulty getting her prosthetic
legs underneath the cage if he turned her facing forward. McColman did not tell Doan she
was unstable in the position in which he situated her. There is no evidence in the record that
11
Doan was driving at an excessive rate of speed or recklessly when McColman fell over and
hit her head.
Doan’s response when McColman hit her head undermines any claim that Doan’s
conduct was “wanton or malicious . . . or demonstrated a reckless indifference to the
common dictates of humanity.” Bennett, 2011 WL 5604055, at *6 (internal quotation marks
omitted). When Doan heard a thud in the back seat, he stopped the police car and checked
on McColman. McColman was breathing and moving but not talking. Doan immediately
took McColman to the hospital because she had fallen over and was unresponsive. At most,
Doan’s failure to anticipate that McColman would fall over and hit her head because she was
positioned sideways was garden-variety negligence, not gross negligence. Accordingly, the
district court correctly concluded that Doan was not grossly negligent in placing McColman
sideways in the back seat of the police car and that he was therefore entitled to governmental
immunity.
Similarly, Doan was not grossly negligent in leaving McColman under Stoyan’s
supervision when he went to fill out hospital paperwork and paperwork necessary to obtain
a warrant for a blood draw. Doan anticipated that he would need backup at the hospital,
called for backup, and was met at the hospital by Stoyan. McColman testified that she was
left unattended in the examination room with the police officers standing outside the door
of the examination room. At some point, McColman fell off the gurney and hit her right
elbow on the floor. McColman testified that one of her prosthetic legs was slipping off, she
was trying to hold it on with her other leg, and she fell off the gurney after she lost her
balance due to her hands being handcuffed behind her back.
12
Crediting McColman’s version of events, as we must at the summary judgment stage,
Doan is still entitled to governmental immunity because Doan exercised due care in asking
Stoyan to supervise McColman while he filled out paperwork. Even if Stoyan failed to stay
in the room with McColman, and she was therefore left unattended, it was reasonable for
Doan to ask another officer to supervise an arrestee while he could not. There is no evidence
in the record that Doan knew or should have known that Stoyan would not watch McColman
at all times. On these facts, Doan did not engage in conduct that was “wanton or malicious
. . . or demonstrated a reckless indifference to the common dictates of humanity.” See
Bennett, 2011 WL 5604055, at *6 (internal quotation marks omitted).
Moreover, Doan’s actions were not the proximate cause of McColman’s fall and
consequent injury. See Mich. Comp. Laws § 691.1407(2)(c). According to McColman’s
own testimony, she only fell because she was trying to keep one prosthetic leg on with the
other, and lost her balance because her hands were handcuffed behind her back. The most
direct cause of McColman’s injury was her decision to use one of her prosthetic legs to try
to keep on the other, which was falling off. Because McColman’s actions, not Doan’s, were
the most direct cause of her fall and injury, Doan was entitled to governmental immunity.
See Livermore, 476 F.3d at 408.
IV.
For the foregoing reasons, we affirm the district court’s judgment.
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