Opinion
Case No. 4:98-CV-55
June 14, 2001
OPINION
Plaintiff Michael E. Maddox has filed Objections to the Magistrate Judge's Report and Recommendation of May 16, 2001. The Magistrate Judge has recommended that the Court grant Defendants' Motion for Partial Summary Judgment in part and dismiss all claims against Defendant Marcie Lawrence and also dismiss claims against Defendant Jason Gudo alleged in Counts I-VI of the Amended Complaint (but not other claims against Defendant Gudo). Plaintiff objects to the portion of the Report and Recommendation which recommends dismissal of all claims against Defendant Marcie Lawrence. Defendants have not responded to the Objections. The Court reviews the Objections and the record as a whole de novo in accordance with Federal Rule of Civil Procedure 72(b) .
FACTS
Plaintiff's Amended Complaint alleges two separate assaults involving the use of excessive force-one allegedly occurring on June 9, 1996 and the second allegedly occurring on January 31, 1997. Defendant Marcie Lawrence was at the times of these incidents a corrections officer employed at the Kalamazoo County Jail. (M. Lawrence Dep. at 13.) Defendant Marcie Lawrence was not involved in the June 9, 1996 incident. (Plaintiff's Dep. at 48.) However, Plaintiff had a dispute with Defendant Marcie Lawrence in July of 1996, which according to Plaintiff, involved Defendant Marcie Lawrence wrongly denying him access to an Alcoholics Anonymous class and directing profanity toward him. (Plaintiff Dep. at 58-59.)
As to the January 31, 1997 incident, Plaintiff listed a number of officers directly involved in assaulting him and using excessive force. The officers listed did not include Defendant Marcie Lawrence, although Plaintiff believed her to be in the cell. (Plaintiff Dep. at 63-64, 111-112.) According to Plaintiff, the officers struck him with their fists and kicked him while he lay on his stomach, covering his face. (Plaintiff Dep. at 68-71.) They also choked him with a shirt until he was unconscious. ( Id. at 72.) According to Plaintiff, the assault caused him a bloody nose, black eye, and bruises and soreness through his body. ( Id. at 76.)
According to Defendant Marcie Lawrence, she did not participate in the restraint of Plaintiff, but was in the cell at the time. (M. Lawrence Dep. at 23-28.) During the time, Defendant Marcie Lawrence observed the officers' restraint of Plaintiff, which she characterized as the officers holding, but not striking and choking, the Plaintiff. ( Id.)
STANDARD FOR SUMMARY JUDGMENT
Under the language of Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. In making this assessment, however, the factual record presented must be interpreted in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
LEGAL ANALYSIS
It is apparent from Plaintiffs Objections that Plaintiff has narrowed his claims against Defendant Marcie Lawrence to two claims involving the later assault : (1) that as to the January 31, 1997 assault Defendant Marcie Lawrence violated the Plaintiff's rights against excessive force under 42 U.S.C. § 1983 and the Fourteenth Amendment by participating in the assault upon Plaintiff; and (2) that as to the January 31, 1997 assault Defendant Marcie Lawrence violated the Plaintiff's rights against excessive force under 42 U.S.C. § 1983 and the Fourteenth Amendment by failing to prevent the assault and injuries.
Since this case involved Plaintiff s rights as a pre-trial detainee and not as a convicted person, the Fourteenth Amendment and not the Eighth Amendment provides the source of the constitutional right at issue. See Graham v. Connor, 490 U.S. 386, 396 n. 10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1976); Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).
As to the first of these claims, there is no genuine issue of material fact and Defendant Marcie Lawrence is entitled to summary judgment as a matter of law. All of the evidence cited, including both Defendant Marcie Lawrence's account of the assault and the Plaintiffs account of the assault, do not support a conclusion that she assaulted Plaintiff during the January 31, 1997 incident.
However, the opposite conclusion is warranted as to the claim that she failed to prevent the injuries on January 31, 1997. A reasonable jury might well conclude that the assault occurred as Plaintiff described it and that the Defendant both witnessed the assault and intentionally failed to prevent injuries. Were this the case, then Defendant Marcie Lawrence would be liable to Plaintiff for a constitutional violation in failing to prevent the assault and injuries. See Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). As such, the Plaintiff's Objections will be granted to the extent that summary judgment shall be denied as to the section 1983 claim for "failure to prevent the use of excessive force" against Defendant Marcie Lawrence.
CONCLUSION
Therefore, a Partial Judgment shall enter granting in part and denying in part Plaintiff's Objections as stated in this Opinion.
PARTIAL JUDGMENT
In accordance with the Opinion of this date; IT IS HEREBY ORDERED that the Plaintiff's Objections (Dkt. No. 70) are GRANTED IN PART AND DENIED IN PART and that the Report and Recommendation of May 17, 2001 is ADOPTED IN PART AND REJECTED IN PART.
IT IS FURTHER ORDERED that Defendant's Motion for Partial Summary Judgment (Dkt. No. 63) is GRANTED IN PART AND DENIED IN PART as follows: Partial summary judgment is entered in favor of Defendant Marcie Lawrence and Defendant Jason Gudo as to the following claims: (1) all claims against Defendant Marcie Lawrence except for claims under 42 U.S.C. § 1983 that she violated Plaintiff's rights by failing to intervene to prevent the use of excessive force against him on January 31, 1997; and (2) Counts I-VI as to Defendant Jason Gudo. In all other respects, Defendants' Motion for Partial Summary Judgment is DENIED