Wallace v. Smith, et al., No. 2:2017cv02269 - Document 60 (W.D. Tenn. 2020)
Court Description: ORDER denying 54 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 7/23/2020. (Mays, Samuel)
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Wallace v. Smith, et al. Doc. 60 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 1 of 20 PageID 374 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) SHERNARD WALLACE, Plaintiff, v. CHRISTOPHER BROWN and WILLIAM SMITH, Defendants. No. 2:17-cv-02269 ORDER This is a § 1983 case asserting a claim of excessive force by City of Christopher Memphis police Brown and officers. William Before Smith’s the Court (collectively, “Defendants”) May 20, 2020 Motion for Summary Judgment. No. 54.) 2020. is (ECF Plaintiff Shernard Wallace responded on June 15, (ECF No. 57.) Defendants replied on June 29, 2020. (ECF Nos. 58-59.) For the following reasons, the Motion for Summary Judgment is DENIED. I. Background Around 10:00 p.m. on May 4, 2016, Defendants, City of Memphis police officers, observed a vehicle headlight out in downtown Memphis, Tennessee. with a front (ECF No. 54-2 Dockets.Justia.com Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 2 of 20 ¶¶ 1-2.) Wallace was in the driver’s seat. PageID 375 (Id. ¶ 3.) Defendant Smith approached the vehicle to advise Wallace about the headlight. (Id.) Wallace opened the driver’s side door, and Smith observed in the door compartment a plastic bag that appeared to contain narcotics. (Id. ¶ 4.) Wallace grabbed the plastic bag, left the vehicle, and started running away. ¶¶ 5-6.) Smith gave chase on foot. (Id. ¶ 7.) (Id. Wallace ran through a parking lot, tried to jump over a gate, and fell 2025 feet. (Id. ¶ 8.) plastic bag behind. Wallace continued running, leaving the (Id. ¶¶ 8-9.) Defendant Brown caught up to Wallace on foot and ordered Wallace to stop. (Id. ¶ 11.) The parties dispute some of what happened next. Wallace contends that he “complied with Officer C. Brown’s instruction by stopping, lifting both of my hands in the air above my head[,] and surrender[ing] to his command.” (ECF No. 57 at 9.) Wallace contends that Brown then struck Wallace in the face several times with his fist and put Wallace in a headlock. (Id.) Smith, who by that time had caught up to Wallace and Brown, punched Wallace in the side and back and placed him in handcuffs. several more (Id.) times Both Brown and Smith then struck Wallace before placing him in their squad car. (Id.) Defendants contend that, when Brown caught up to Wallace, Brown ordered Wallace to get on the ground. 2 (ECF No. 54-2 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 3 of 20 ¶ 13.) Wallace refused to comply. (Id.) PageID 376 Brown then hit Wallace several times with his fist, put Wallace in a headlock, and tackled him to the ground. (Id. ¶¶ 13-14.) Once Wallace was on the ground, Brown and Smith arrested Wallace. ¶ 15.) (Id. Defendants do not admit that they struck Wallace after he had been placed in handcuffs. (See id.) The parties agree that, after Wallace had been arrested, Smith retrieved the plastic bag Wallace had dropped. ¶ 16.) The substance in the bag was cocaine. (Id. (Id. ¶¶ 16-17.) Wallace was transported to Regional One Hospital and then to the Shelby County Criminal Avenue, Memphis, Tennessee. by the State of Tennessee Justice Complex (Id. ¶ 18.) with at 201 Popular Wallace was charged possession of cocaine with intent to manufacture, deliver or sell; evading arrest; and resisting official detention. (Id. ¶ 19.) Wallace pled guilty to a lesser-included charge of simple possession of cocaine and was sentenced to eleven months and twenty-nine days in jail. (Id. ¶ 20.) In April 2017, Wallace filed a pro se Complaint against Brown, Smith, and several other defendants, alleging causes of action under 42 U.S.C. § 1983. (ECF No. 1.) Wallace filed an Amended Complaint. In August 2017, (ECF No. 7.) In December 2017, the Court dismissed the Amended Complaint, but granted leave to amend. (ECF No. 10.) In January 2018, Wallace filed 3 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 4 of 20 a Second Amended Complaint. Court dismissed Complaint, but most held of (ECF No. 12.) the that claims Wallace in had PageID 377 In April 2018, the the Second plausibly excessive force claim against Brown and Smith. Amended stated an (See ECF No. 15 at 4.) On May 20, 2020, Defendants filed the Motion for Summary Judgment, a memorandum in support, a Statement of Undisputed Material Facts, and declarations from Brown and Smith. (ECF Nos. that 54, summary 54-1, 54-2, judgment is 54-3, 54-4.) appropriate Defendants because they argue did excessive force during their encounter with Wallace. No. 54-1 at 8-10.) not use (See ECF In the alternative, Defendants argue that summary judgment is appropriate because, even if they did use excessive force, they are entitled to qualified immunity. (See id. at 11.) On June 15, 2020, Wallace responded to the Motion for Summary Judgment. (ECF No. 57.) In his response, Wallace included a memorandum in opposition, a Statement of Additional Disputed Facts, and a declaration. a response to Defendants’ (Id.) Statement of Wallace did not file Undisputed Material Facts. II. Jurisdiction The Court has federal question jurisdiction. Under 28 U.S.C. § 1331, district courts have original jurisdiction “of 4 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 5 of 20 PageID 378 all civil actions arising under the Constitution, laws, or treaties of the United States.” Wallace against Defendants under 42 U.S.C. § 1983. asserts a claim That claim arises under the laws of the United States. III. Standard of Review A. Summary Judgment Under Federal Rule of Civil Procedure 56, a court must grant a party’s motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). nonmoving party, The moving party must show that the having had sufficient opportunity for discovery, lacks evidence to support an essential element of its case. See Fed. R. Civ. P. 56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir. 2018). When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. Fed. R. Civ. P. 56(c). See “A genuine dispute exists when the plaintiff presents significant probative evidence on which a reasonable jury could return a verdict for her.” Motor Co., 782 F.3d 753, (quotation marks omitted). 760 (6th Cir. EEOC v. Ford 2015) (en banc) The nonmoving party must do more than simply “show that there is some metaphysical doubt as to 5 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 6 of 20 the material facts.” PageID 379 Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). nonmovant must identify specific evidence in the sufficient to establish a genuine issue for trial. The record See Fed. R. Civ. P. 56(c)(1); Hanson v. Madison Cty. Det. Ctr., 736 F. App’x 521, 527 (6th Cir. 2018). Although summary judgment must be used carefully, it “is an integral part of the Federal Rules as a whole, which are designed to determination secure of every procedural shortcut.” 289, 294 (6th the Cir. just, action[,] speedy, rather and than inexpensive a disfavored FDIC v. Jeff Miller Stables, 573 F.3d 2009) (quotation marks and citations omitted). B. Section 1983 and Qualified Immunity Under 42 U.S.C. § 1983, state officials are liable for damages if they deprive anyone of his constitutional or statutory rights. See Kaminski v. Coulter, 865 F.3d 339, 345 (6th Cir. 2017). State officials can assert a defense of qualified immunity. That doctrine protects them from civil liability unless the constitutional or statutory rights were clearly established when the violation occurred. Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). 6 See Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 7 of 20 A two-tiered inquiry governs qualified immunity PageID 380 cases. See Ferris v. City of Cadillac, 726 F. App’x 473, 478 (6th Cir. 2018). “First, taken in the light most favorable to the party asserting the injury, do the facts alleged show officer’s conduct violated a constitutional right?” that the Cahoo v. SAS Analytics Inc., 912 F.3d 887, 897 (6th Cir. 2019) (quoting Seales v. City of Detroit, 724 F. App’x 356, 359 (6th Cir. “Second, is the right clearly established?” 2018)). Court may address these prongs in either order.” Id. “[A] Id. Whether an officer is entitled to qualified immunity is a question of law. See Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). However, when “the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability.” Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). The first task is to determine the extent to which the record supports the plaintiff’s version of events. See Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009). If the plaintiff offers evidence sufficient to create a genuine whether, favorable entitled dispute of viewing to to the material those fact, disputed plaintiff, qualified the immunity. the facts Court in officer Id. at the is 907 must decide light most nevertheless (noting that qualified immunity is not appropriate if, “viewing the evidence 7 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 8 of 20 PageID 381 in the light most favorable to [plaintiff], a constitutional right was violated and that . . . right was clearly established at the time of the violation”) (citing Scott v. Harris, 550 U.S. 372, 377 (2007)). IV. Analysis Defendants’ Statement of Undisputed Material Facts A. Defendants argue that, because Wallace did not file a response to their Statement of Undisputed Material Facts, the Court should consider the facts Defendants assert to be “admitted by operation of law” for the purpose of deciding the Motion for Summary Judgment. (See ECF No. 59 at 1-3.) Under the Local Rules of this District, a party opposing a motion for summary judgment “must respond to each fact set forth by the movant by either: (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record.” LR 56.1(b). A party’s “[f]ailure to respond to a moving party’s statement of asserted judgment.” material facts are facts not . . . disputed shall for indicate purposes of that the summary Id. 56.1(d). Pro se litigants such as Wallace are not excused from the requirements of the Federal Rules of Civil Procedure or the 8 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 9 of 20 local rules. 1989). PageID 382 See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. However, pro se litigants are entitled to some leniency in complying with formal procedures. Cf. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (pro se complaints are held “to less stringent standards than formal pleadings drafted by lawyers”). “[D]istrict courts may liberally construe the federal and local rules for pro se litigants[.]” Greer v. Home Realty Co. of Memphis Inc., No. 2:07-cv-2639, 2010 WL 6512339, at *2 (W.D. Tenn. July 12, 2010) (quoting Whitfield v. Snyder, 263 F. App’x 518, 521 (7th Cir. 2008)). Wallace did not file a response to Defendants’ Statement of Undisputed Material Facts. In his unsworn response to the Motion for Summary Judgment, Wallace did not and could not present competent summary Defendants’ asserted facts. judgment evidence contradicting In his declaration, signed under penalty of perjury, Wallace conclusorily states that he “did not resist or threaten the officers in any fashion” during his arrest, but does not make particular factual assertions about Defendants’ use of force during his arrest. 2-5.) (See ECF No. 57 at In his supporting memorandum, Wallace submits a detailed description of the events of his arrest that conflicts with some of Defendants’ asserted facts. (See id. at 8-11.) Wallace’s memorandum is unsworn and is not competent summary judgment evidence. See Viergutz v. Lucent Techs., Inc., 375 F. 9 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 10 of 20 PageID 383 App’x 482, 485 (6th Cir. 2010) (pro se litigants are “obligated at the summary judgment phase to ‘identify specific facts that can be established by admissible evidence, which demonstrate a genuine issue for trial’”) (quoting Amimi v. Oberlin Coll., 440 F.3d 350, 357 (6th Cir. 2006)); King v. UT Med. Grp., Inc., No. 09-cv-2080, 2011 WL 13269768, at *3 (W.D. Tenn. Mar. 3, 2011) (“The Court cannot consider any factual assertions that are made in legal memoranda or that are not sworn to under penalty of perjury.”) (citing Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir. 1991)). Wallace’s Second Amended Complaint is verified. No. 12 at 1.) (See ECF Wallace declares under penalty of perjury that the contents of Second Amended Complaint are true and correct, and dates that declaration. (See id.); see also Williams v. Browman, (6th 981 F.2d 901, 904 Cir. 1992) (in 28 U.S.C. § 1746, “[t]he United States Code specifically provides for verification of unsworn complaints, thereby allowing pro se [parties] to controvert sworn affidavits and place into issue material facts”). A “verified complaint [] carries the same weight as would an affidavit for the purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)). Wallace does not cite the Second Amended Complaint in his opposition to the 10 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 11 of 20 Motion for Summary Judgment. PageID 384 “But courts should consider the allegations in a pro se prisoner’s verified complaints (which are effectively affidavits) before entering judgment against him, even if the prisoner fails to cite response to a motion for summary judgment.” 483 F. App’x 202, 203 (6th Cir. 2012). Complaint, Wallace, under penalty that evidence in Miller v. Jones, In his Second Amended of perjury, submits a detailed description of the events of his arrest that conflicts with some of Defendants’ asserted facts. (See ECF No. 12-3 at 1-7.) Wallace’s papers are not always in the correct form. Given his pro se status, the Court will excuse the technical deficiencies Judgment. in his response to the Motion for Summary See LR 1.1(e) (“[T]he Court may deviate from any provision of any Local Rules of this Court, when appropriate for the needs of the case and the administration of justice.”). There is competent summary judgment evidence in the record establishing genuine disputes of material fact. The Court considers Defendants’ asserted facts to be undisputed except where contradicted by Wallace’s factual description of the events of his arrest as set out in the verified Second Amended Complaint. 11 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 12 of 20 B. PageID 385 Genuine Disputes of Material Fact The parties put forward conflicting accounts of Wallace’s arrest. Wallace asserts in the Second Amended Complaint that, after Brown ordered him to stop running, he “complied with Officer C. Brown’s instructions by stopping, lifting both of my hands in the air above my head[,] and surrender[ing] to his command”; that Brown struck Wallace in the face several times with his fist and put Wallace in a headlock; that Smith punched Wallace in the side and back and placed him in handcuffs; and that, while Wallace was handcuffed, Brown and Smith struck him several more times before placing him in their squad car. (ECF No. 12-3 at 1-3.) Defendants assert that Brown ordered Wallace to get on the ground; that Wallace refused to comply; that Brown hit Wallace several times with his fist, put Wallace in a headlock, and tackled him to the ground; and that, once Wallace was on the ground, Brown and Smith arrested Wallace. 15.) (ECF No. 54-2 ¶¶ 13- Except for Brown’s strikes while taking Wallace to the ground, Defendants do not assert that they hit Wallace before or after he was handcuffed. Brown and Smith have their factual assertions. (See id.) submitted declarations supporting (See ECF No. 54-3; ECF No. 54-4.) In the verified Second Amended Complaint, Wallace has provided support for his factual assertions. 12 (See ECF No. 12-3 at 1-7.) Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 13 of 20 No other evidence has been submitted by either side. PageID 386 It does not appear that any depositions were taken in this case. No other documentary or witness evidence has been offered. Given believe the either evidence provided, Wallace’s or events of Wallace’s arrest. a reasonable Defendants’ description version of made events between is could of the None of the declarations provided is conclusive evidence of what took place. determination juror the officers’ inappropriate for “Any credibility and [plaintiff’s] summary judgment.” Tarver v. City of Edna, 410 F.3d 745, 752-54 (5th Cir. 2005) (affirming judgment in in relevant § 1983 case part denial of involving motion for allegation of summary excessive force); see also Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990) (where a “district court could resolve [a factual] dispute only by deciding to believe [defendant’s] affidavit rather than determination plaintiffs’ is affidavits, inappropriate in [] such ruling on a credibility a motion for summary judgment”). Taking the facts in the light most favorable to Wallace, the following is what happened after Brown ordered Wallace to stop running: Wallace stopped and lifted both of his hands in the air; Brown struck Wallace in the face several times with his fist and put Wallace in a headlock; Smith punched Wallace in the side and back and placed him in handcuffs; and, while 13 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 14 of 20 PageID 387 Wallace was handcuffed, Brown and Smith struck him several more times. That is sufficient to avoid summary judgment. C. Qualified Immunity Qualified liability immunity under § 1983 will shield unless: (1) Defendants they from violated civil one of Wallace’s constitutional rights; and (2) that right was clearly established at the time. 1. Wallace See Cahoo, 912 F.3d at 897. Constitutional Right contends that Defendants while arresting him on August 4, 2016. 15-22; ECF No. 12-4 at 9, 19.) used excessive force (See ECF No. 12-2 at Excessive force claims are analyzed under the Fourth Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). “[W]hether the force used to effect a particular seizure is ‘reasonable’ . . . requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Although reasonableness is ultimately based on the totality of the circumstances, three factors guide the analysis: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officer or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. 14 Id. Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 15 of 20 The reasonableness of the force must be judged PageID 388 from the perspective of a reasonable officer on the scene, not “with the 20/20 vision of hindsight.” Id. When officers use force multiple times, the Sixth Circuit has found it appropriate to divide the incident into segments and to analyze each use of force on its own terms. See Harris v. City of Circleville, 583 F.3d 356, 365 (6th Cir. 2009). Wallace contends that Defendants used excessive force at two distinct points: (1) when subduing Wallace and taking him to the ground, and (2) after Wallace was handcuffed. (See ECF No. 12-3 at 1-3.) First, Defendants’ use of force when subduing Wallace and taking him to the ground. Both parties agree that Wallace initially evaded arrest by running away from Brown and Smith. (See ECF No. 54-2 ¶¶ 5-12; ECF No. 12-3 at 1.) However, in Wallace’s telling, he had stopped running, raised both his hands, and surrendered before Brown struck him in the face and put him in a headlock and Smith punched him in the side and back. (See ECF No. 12-3 at 1-3.) A reasonable jury could find that Defendants’ use of force in subduing Wallace and taking him to the ground was excessive. Under the Fourth Amendment, “once the detainee ceases to pose a threat to the safety of the officers or others, the legitimate government interest in the application of significant force 15 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 16 of 20 dissipates.” PageID 389 Morrison v. Bd. of Trs. of Green Twp., 583 F.3d The Sixth Circuit has “held 394, 404-05 (6th Cir. 2009). repeatedly that the use of force after a suspect has been incapacitated or neutralized is excessive as a matter of law.” Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) (collecting cases and finding genuine dispute of material fact about whether defendant’s officer head attempting to used and evade excessive force after defendant knee arrest and had when raised he had his struck stopped hands in surrender). Second, Defendants’ handcuffed. use of force after Wallace was Provided Wallace was not continuing to resist Defendants, any use of force after he was handcuffed would be “‘Gratuitous excessive. violence’ inflicted upon an incapacitated detainee constitutes an excessive use of force, even when Morrison, the 583 injuries F.3d at suffered 404-07 are (finding not substantial.” genuine dispute of material fact about whether officer used excessive force when he pushed defendant’s face into the ground while defendant was handcuffed and prone); see also Pigram ex rel. Pigram v. Chaudoin, 199 F. App’x 509, 512-14 (6th Cir. 2006) (finding genuine dispute of material fact about whether officer used excessive force when he slapped handcuffed plaintiff in the face). 16 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 17 of 20 PageID 390 Taking the facts in the light most favorable to Wallace, a reasonable jury could find that Defendants’ use of force while arresting Wallace was excessive under the Fourth Amendment. Wallace has established genuine disputes of material fact about whether Defendants violated his constitutional rights. 2. For a Clearly Established constitutional right to be clearly established, precedent at the time of the alleged misconduct “must have placed . . . the constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). That precedent must be a case of “controlling authority or a robust consensus Rickard, of cases 572 U.S. citations omitted). of persuasive 765, 780 authority.” (2014) (quotation Plumhoff marks v. and There need not be a case “directly on point,” Kisela, 138 S. Ct. at 1152, but the contours of the violated right must have been “sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it,” Plumhoff, 572 U.S. at 778-79. Clearly established law may not be defined at a high level of generality. See Kisela, 138 S. Ct. at 1152. Precedent showing that the law was clearly established must be factually specific. See id. at 1152-53. 17 That is especially true in Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 18 of 20 PageID 391 excessive force cases, where “the result depends very much on the facts of each case.” Id. at 1153 (quoting Mullenix v. “[P]olice Luna, 136 S. Ct. 305, 309 (2015) (per curiam)). officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” Id. Factually similar controlling precedents that existed at the time of Wallace’s arrest squarely govern this case. Baker, the Sixth Circuit held that an officer violated In a defendant’s clearly established constitutional right when he struck the defendant on the head and knee with a baton after the defendant had emerged from some bushes “with his hands straight up in the ‘surrender’ position.” 471 F.3d at 607-08. In Baker, as here, the defendant was not handcuffed at the time he surrendered and had previously been evading arrest. See id. The Court held that the officer’s strikes to the defendant’s head and knee after the defendant had surrendered was a violation of the defendant’s clearly established “right to be free from gratuitous strikes to his body.” Id. at 608. Under Baker, Defendants’ use of force in subduing Wallace and taking him the ground after Wallace had surrendered was a violation of a clearly established constitutional right. In Morrison, the Sixth Circuit held that an officer violated a defendant’s clearly established constitutional right when he pushed the defendant’s face into the ground while she 18 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 19 of 20 was handcuffed and prone. that it was “obvious” 583 F.3d at 404-08. that an officer PageID 392 The Court held “could not push a handcuffed detainee’s face into the ground when there lacked a genuine threat to the safety of the officers or others.” Id. at 408 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002)). Collecting other Sixth Circuit cases, the Court said, “[i]n this Circuit, the law is clearly established that an officer may not use additional gratuitous force once a suspect has been neutralized.” Id. (quoting Alkhateeb v. Charter Twp. of Waterford, 190 F. App’x 443, 452 (6th Cir. 2006)). Under Morrison, Defendants’ use of force in striking Wallace after he had been handcuffed and had ceased to resist was a violation of a clearly established constitutional right. Taking the facts in the light most favorable to Wallace, Defendants violated Wallace’s clearly established Amendment right to be free from excessive force. are not entitled to qualified immunity. Fourth Defendants The Motion for Summary Judgment is DENIED. V. Conclusion For the foregoing reasons, the Motion for Summary Judgment is DENIED. 19 Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 20 of 20 So ordered this 23rd day of July, 2020. /s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 20 PageID 393
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