Federal District Court Opinions

TODHUNTER v. SWAN, (E.D.Mich. 11-29-2006) MAXWELL G.
Defendants. Case No. 05-CV-74934. United States District
Court, E.D. Michigan, Southern Division. November 29, 2006


ROBERT CLELAND, District Judge

This is a Fourth Amendment claim, brought under 28 USC
§ 1983, in which Plaintiff asserts that Defendant
Jeff Swan, a Macomb County Deputy Sheriff, after arresting
him used unconstitutionally excessive force in getting him
fully into the back seat of the deputies’ patrol car.
Unfortunately, because of an unusual leg deformation
unknown to Deputy Swan, a major bone in Plaintiff’s leg was
broken in the course of the deputy pushing Plaintiff
further into the back seat beside Plaintiff’s two
companions. Plaintiff asserts that Deputy Paraski is liable
in tort for not intervening. Defendants’ “Motion for
Summary Judgment” is now before the court. The matter has
been fully briefed and the court concludes that a hearing
is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the
reasons stated below, the court will grant Defendants’


Plaintiff’s claims are asserted in part under 28 U.S.C.
§ 1983 for excessive force after a traffic stop on a
country road resulted in three arrests, including
Plaintiff. The facts that follow are not disputed, except
where indicated. As a young child, Plaintiff was Page 2
involved in a car accident and injured the growth plate in
his left leg. (Pl.’s Dep. at 12, Pl.’s Ex. 5.) Several
years later, with his left leg having developed to be
somewhat shorter than his right, Plaintiff began undergoing
a number of medical procedures, including surgery, to
lengthen his left femur. (Doctor’s Report, Pl.’s Ex. 1.)
The new bone that grows, according to Plaintiff’s doctor,
is weak because it has less compressive or tensile strength
than that of “normal bone.” (Zaltz Dep. at 13-14, Defs’ Ex.
C.) The incident in question happened about two months
after Plaintiff underwent his most recent surgical
procedure of this kind. (Pl.’s Dep. at 65-66.)

On September 11, 2004 shortly before midnight, the
seventeen-year-old Plaintiff was riding around in a Jeep
smoking marijuana and drinking beer with two friends,
Jameson Fortuna — the driver — and Bryan
Sanchez — the back seat passenger — when
police pulled the car over for speeding. (Police Report,
Pl.’s Ex. 2.) Defendants Jeff Swan and Chris Paraski,
deputies of the Macomb County Sheriff, approached the car
and smelled alcohol. (Id.) Paraski spoke with Fortuna while
Swan approached Plaintiff, who was seated in front. (Id.)
Swan observed two open beer cans on the floorboard under
Plaintiff’s feet. (Id.) Fortuna stated that he was the
designated driver and Plaintiff and Sanchez admitted that
they were drinking the beer. (Id.) Defendants asked all
three to get out of the vehicle. (Id.) Swan’s report, which
Plaintiff does not dispute, indicates that Sanchez and
Plaintiff tested positive on a Preliminary Breath Test
device for alcohol. (Id.) Page 3

In his deposition, Plaintiff recounted from his point of
view the following sequence of events.[fn1] Swan approached
Plaintiff on the passenger side of the car and asked if
Plaintiff had been drinking. (Pl.’s Dep. at 36.) Plaintiff
responded that he had, and Swan asked him to step out of
the car. (Id.) Plaintiff and Sanchez got out on the
passenger’s side while Fortuna stepped out and spoke with
Paraski on the driver’s side. (Id. at 37-39.) Paraski gave
Fortuna a sobriety test. (Id. at 38.) Defendants searched
the car and found “one or two grams” of marijuana in the
back seat. (Id. at 39-40.) The three men initially lied,
denying any knowledge of the marijuana. Defendants
handcuffed Fortuna and Sanchez at the side of Fortuna’s
car. (Id. at 39-40, 42.) Eventually, the three admitted
that the marijuana “was all of ours.” (Id. at 41.)
Defendants escorted the three to the police car. (Id. at
41.) Plaintiff walked with a limp that should have been
obvious to an observer. (Id. at 79.) Neither Defendant
asked Plaintiff what was wrong or why he was limping, nor
did Plaintiff say anything about it. (Id. at 104.)
Defendants placed Fortuna in the rear seat behind the
driver’s seat of the police car, Sanchez in the middle rear
seat and Plaintiff in the rear seat behind the front
passenger’s seat. (Id. at 41.)

Plaintiff was “halfway in the car” with “my legs out” when
Swan asked him and Sanchez to take preliminary breath
tests, and they complied. (Id. at 44-45, 47.) After the
test, Swan told Plaintiff to get in the car. (Id. at 48.)
Plaintiff stood up and put his left leg in the car. (Id. at
49-50.) Plaintiff was unable to bend his left leg
sufficiently to Page 4 get all the way in the back seat as
the lower part of the protective partition in the police
car behind front seat “was too close.” (Id. at 50.)[fn2]

As Plaintiff was attempting to sit in the back seat, and as
he was about halfway in, (id. at 50), he told Swan, (id. at
51) as Swan was shutting the door,[fn3] (id. at 103), that
Plaintiff “didn’t think I could fit because of my leg,”
(id. at 48-49). At this point, Plaintiff had his left leg
in the car up against the partition with his left hip on
the seat and his right leg straddling out the door. (Id. at
51-52.) Swan did not ask Plaintiff what was wrong with his
leg; Plaintiff did not elaborate. (Id. at 52.) Instead,
Swan used both his hands to push Plaintiff in the back
seat. Swan used “force” (Id. at 52) to do so.[fn4] Sanchez
at the time was “as far over as he could get” to make room
for Plaintiff. (Id. at 58.)

It took about four or five seconds for Plaintiff to
verbalize his trouble getting in “because of [his] leg,”
and for Swan to push Plaintiff into the seat. (Id. at 97.)
Plaintiff stated that Swan “just pushed me” . . . “[t]o
slide me over.” (Id. at 54.) Plaintiff testified that Swan
was not attempting to hurt him or to physically injure him
with the push. (Id.) Plaintiff said that Swan made a noise
like a sigh, or otherwise voiced what Plaintiff viewed as
disgust with a “[t]ch, like a `huh'” just before pushing
him. (Id. at 102, 104.) For that reason, Plaintiff
responded affirmatively when asked if he thought Swan was,
Page 5 according to the words of Plaintiff’s attorney,
“being a jerk about it.” (Id. at 103.) Swan did not shrug
his shoulders or make any particular facial expressions
towards Plaintiff. (Id. at 102.) Sanchez also states that
Swan at no point treated Plaintiff angrily. (Sanchez Dep.
at 26, Pl.’s Ex. 6.)

In the course of Swan pushing Plaintiff into the seat,
Plaintiff’s left foot or leg caught on the transmission hump
on the floor in the car and Plaintiff’s femur “just snapped
. . . down by the knee.” (Pl.’s Dep. at 54.) He felt an
immediate “warm tingling and stabbing feeling.” (Id.) Swan
then sat in the front passenger seat and Plaintiff waited
“about a minute” before he asked three times to exit the
car. (Id. at 55-57.) After the third time, Plaintiff
stated, “I think there is something wrong with my leg. It
might be broke [sic].” (Id. at 56.) Swan, who did not
respond[fn5] the first two times, then told Plaintiff that
Swan would let Plaintiff out once Plaintiff was wearing
handcuffs. (Id. at 56-57.) Swan came back, opened
Plaintiff’s door, told Plaintiff to extend his arms, and
then Swan placed handcuffs on Plaintiff. (Id. at
58-59.)[fn6] Swan did not, however, permit Plaintiff to
exit and instead “[c]losed the door and we went to jail.”
(Id. at 59.) Plaintiff and Sanchez continued to complain
about Plaintiff’s leg during the ride to jail, which lasted
twenty or twenty-five minutes. (Id.)[fn7] Page 6

After his release and as a result of the fracture,
Plaintiff sought medical care and underwent additional
surgery. (Doctor’s Report, Pl.’s Ex. 1; Zaltz Dep. at 25.)
Plaintiff’s fracture was located in the regenerate, or new
bone. (Zaltz Dep. at 13.)


Plaintiff filed suit on December 30, 2005, subsequently
amending his complaint to assert claims of excessive force
in violation of the Fourth Amendment (Count I), medical
indifference (Count II), concert of action (Count III) and
gross negligence (Count IV). (Pl.’s Second Am. Compl.)[fn8]
Defendants moved for summary judgment on October 2, 2006.
They contend that the claim of excessive force should fail
because Swan used minimal force and acted reasonably under
the circumstances and because Paraski had no physical
contact with Plaintiff nor any knowledge of the condition
of Plaintiff’s leg. (Defs.’ Br. at 8-10.) For the same
reasons, Defendants request summary judgment for
Plaintiff’s claim of gross negligence under Michigan state
law. (Id. at 10-12.) Plaintiff responds that summary
judgment is inappropriate because there are genuine issues
of fact regarding whether Defendants’ action (or inaction,
depending on the Defendant) was reasonable. (Pl’s Br. at
18-21.) Plaintiff further argues that his claim of gross
negligence should proceed because Swan acted in a manner
that was so reckless as to demonstrate a substantial lack
of concern for whether an injury resulted, and because
Paraski took no action to deter Swan. (Id. at 22.) For the
reasons stated below, the court will grant Defendants’
motion. Page 7


Under Federal Rule of Civil Procedure 56, summary judgment
is proper when there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). “Where the moving party
has carried its burden of showing that the pleadings,
depositions, answers to interrogatories, admissions and
affidavits in the record construed favorably to the
non-moving party, do not raise a genuine issue of material
fact for trial, entry of summary judgment is appropriate.”
Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987)
(citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).

Summary judgment is not appropriate when “the evidence
presents a sufficient disagreement to require submission to
a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). The existence of some factual dispute,
however, does not defeat a properly supported motion for
summary judgment; the disputed factual issue must be
material. See id. at 252 (“The judge’s inquiry, therefore,
unavoidably asks whether reasonable jurors could find by a
preponderance of the evidence that the plaintiff is
entitled to a verdict-‘whether there is [evidence] upon
which a jury can properly proceed to find a verdict for the
party producing it, upon whom the onus of proof is
imposed.'”). A fact is “material” for purposes of summary
judgment when proof of that fact would have the effect of
establishing or refuting an essential element of the claim
or a defense advanced by either party. Kendall v. Hoover
Co., 751 F.2d 171, 174 (6th Cir. 1984).

In considering a motion for summary judgment, the court
must view the facts and draw all reasonable inferences from
those facts in a manner most favorable to the Page 8
nonmoving party. Wexler v. White’s Furniture, Inc., 317
F.3d 564, 570 (6th Cir. 2003) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). The court is not to weigh the evidence to
determine the truth of the matter, but must determine if
there is a genuine issue for trial. Sagan v. United States,
342 F.3d 493, 497 (6th Cir. 2003).


A. Excessive Force under § 1983

Defendants claim there was no excessive force, and,
alternatively, that they are entitled to qualified immunity.
To evaluate that claim, the court must first decide
whether, taking the facts in a light most favorable to
Plaintiff, Defendants’ conduct violated a constitutional
right. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). If
yes, the next step is to determine whether that right was
clearly established. Id. If there was no constitutional
violation, there is no reason to apply qualified immunity
analysis. Id. at 121 (“If no constitutional right would
have been violated were the allegations established, there
is no necessity for further inquiries concerning qualified

Plaintiff alleges that his Fourth Amendment rights were
violated. The Fourth Amendment guarantees that “[t]he right
of the people to be secure in their persons . . . against
unreasonable searches and seizures, shall not be violated. .
. .” U.S. Const. amend IV. The reasonableness of a seizure
depends on when it is made and how it is carried out.
Graham v. Connor, 490 U.S. 386, 395 (1989). Under 42 U.S.C.
§ 1983, excessive force used to effectuate an arrest
can result in civil liability. Id. “[A]n arrest need not be
an assault for it to be actionable under § 1983. St.
John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005) (citing
Burchett v. Kiefer, 310 F.3d 937, 946 (6th Cir. Page 9
2002)). The touchstone is instead the reasonableness of the
arresting officers’ actions. Id. “[T]he `reasonableness
inquiry in an excessive force case is an objective one: the
question is whether the officers’ actions are `objectively
reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent
or motivation.” Graham, 490 U.S. at 397.

Most commonly, excessive force claims arise based upon the
force used in taking the person into physical custody.
Accordingly, proper application of the reasonableness
inquiry ordinarily “requires careful attention to the facts
and circumstances of each particular case, including 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.” Id. at 396 (citation
omitted). These factors, aimed primarily at analyzing the
force used preceding physical custody, are not an
exhaustive list because the ultimate question is “whether
the totality of the circumstances justifies a particular
sort of seizure.” Id. The court balances the nature of the
intrusion on the arrestee’s Fourth Amendment rights against
the government’s countervailing interests that are at
stake. Id. The Sixth Circuit has stated that this standard
“contains a built-in measure of deference to the officer’s
on-the-spot judgment about the level of force necessary in
light of the circumstances of the particular case.”
Burchett, 310 F.3d at 944.

Application of the above standard to the facts of this
case results in no question of material fact concerning
the reasonableness of Defendants’ actions. Plaintiff’s
evidence does not support his argument that Defendants
acted unreasonably. Page 10

First, it is uncontested that Defendants detected the odor
of alcohol when they approached Plaintiff and his friends,
and saw open beer cans at the feet of both Plaintiff and
Sanchez. There is no dispute that Plaintiff and Sanchez
told Defendants that they had been drinking beer, and no
dispute that the deputies acted properly in testing the
assertion of alcohol consumption with the PBT device.

At this point, it is indisputable that Defendants had
sufficient reasons to order the three young men out of the
car and to search their persons and vehicle. Plaintiff does
not dispute that there was probable cause to arrest him for
the being a minor in possession of alcohol. (Pl.’s Br. at
18.) Furthermore, the search of the car produced a small,
usable amount of marijuana, which, Plaintiff concedes,
created additional probable cause to arrest him for
misdemeanor possession of marijuana. (Id.) However,
Plaintiff cites Kostrzewa v. City of Troy, 247 F.3d 633
(6th Cir 2001), for the proposition that “there is no
dispute that the crime for which plaintiff was arrested was
of a minor nature, that he did not pose an immediate threat
to the safety of the officers or others, and was not
actively resisting arrest or attempting to evade arrest by
flight.” (Pl.’s Br. at 18.) The court agrees that the
record contains no evidence suggesting that Plaintiff
actively resisted arrest or attempted to flee. Kostrzewa
was arrested for making an illegal left-hand turn, driving
on a suspended license, and having a civil warrant for
failure to pay child support. 247 F.3d at 637. That case,
however, teaches a different lesson. The Court of Appeals
reversed the district court’s Rule 12(b)(6) dismissal,
holding that Kostrzewa’s allegation that “the defendants
drove recklessly with the plaintiff handcuffed in the back
seat so as to cause him further pain and injury, [], by
Page 11 itself, is enough to state a claim upon which a
reasonable factfinder could conclude that the officers used
excessive force.” Id. at 639

In addition to the obvious difference between a Rule
12(b)(6) analysis, which accepts as true every fact alleged
in the complaint, and a Rule 56 analysis, where the
non-moving party must produce actual admissible evidence,
the allegations in Kostrzewa’s complaint attribute
distinctly malicious acts to the officers, acts that are
therefore considerably more severe than the actions in that
Plaintiff has testified the Defendants engaged in here.
First, from this vehicle containing three young men, open
beer cans and marijuana, Defendants made a custodial arrest
for felony drug possession of the driver, Fortuna, who had
one or more prior drug convictions, (Incident Report, Pl.’s
Resp. Ex. 2), and custodial arrests — for obviously
non-violent offenses — of the passengers as well.
The Jeep was impounded. Id. The arrests were made near
midnight on a rural roadway. Id.

The situation presented to the deputies here was at least
marginally more serious than was Kostrzewa’s illegal turn,
civil warrant and suspended license. Even a casual observer
without the experience of trained police officers would
sense a level of potential danger hovering over Plaintiff’s
situation. Defendants thus had a legitimate interest in
securing Plaintiff and his friends and escorting them to

The serious and vulnerable condition of Plaintiff’s femur,
meanwhile, was neither known to Defendants, nor was it
apparent. Plaintiff was supposed to have been using a cane,
but chose to not do so, (Zaltz dep at 19, 27-29, Defs’ Ex.
C.) and was able to walk unassisted. He did walk with a
noticeable limp, but the nature of Plaintiff’s limp was not
such as to communicate to objectively reasonable officers
in the position of these Page 12 Defendants that Plaintiff
had recently undergone something as serious as
leg-lengthening surgery, or that a part of his left femur
was weakened by that procedure. People may walk with a limp
for myriad numbers of reasons, most of which (if not all)
seem much more foreseeable than the kind of serious
orthopaedic surgery involved here, e.g., some inequality of
leg length, temporary ligament or cartilage injury, muscle
sprains or soreness, or even having a stone in one’s shoe.
Common experience dictates that the most likely reason for
difficulty in ambulation under circumstances such as those
involved in this case is the most simple: some degree of
alcohol or drug intoxication.[fn9]

Without viewing this fact in isolation, the court is not
persuaded that Plaintiff’s unexplained limp was such as to
communicate to objectively reasonable officers either the
presence or the seriousness of Plaintiff’s medical
condition. Furthermore, the court cannot reasonably expect
two officers to attach such significance to every nuance of
a person’s gait while at the same time investigating
intoxication, searching and keeping track of two other
youths and the car, all while on the side of a
country[fn10] road at about Page 13 midnight. Although
Plaintiff never offered and Defendants never asked why he
limped, the court is unaware of any legal duty that would
have required Defendants to ask.

At the door of the police car, Plaintiff also said nothing
of his medical condition. While halfway in the car and
attempting to get in, he merely said he “didn’t think I
could fit because of my leg.” (Pl.’s Dep. at 48-49.) Apart
from failing to even identify which leg he meant,
Plaintiff’s statement said nothing about a serious medical
issue. As with the limp, Plaintiff’s statement was generic
and ambiguous, and could have conveyed a variety of
meanings. Not fitting in the seat “because of my leg” might
mean his legs were too long (not likely in this case, since
Plaintiff was only about 5′ 7″), (Police Report, Pl.’s Ex.
2), an inability or a difficulty bending the knee or
another joint, trouble lifting the leg from underneath
one’s own weight, problems with a pant leg or other
clothing caught on an edge, awkward placement of the leg
and attendant difficulty negotiating limited leg room due
to the partition, or any number of other things. Without
selecting from among these options, the court is
nonetheless convinced that Plaintiff’s ambiguous statement
did not notify Defendants of Plaintiff’s vulnerable left
femur.[fn11] An objectively reasonable officer in Swan’s
position would not have known that he was about to apply a
pushing force that would to cause a major bone to snap.
Instead, he saw before him a young man likely in an
unfamiliar situation (police custody) trying to get into an
Page 14 obviously cramped back seat that had limited leg
room due to the partition, which is not in a typical back
seat, and the presence of his two friends, who were already

The court comes now to the question of the push or shove.
Swan placed both hands upon Plaintiff and applied force to
place Plaintiff fully within the back seat. Plaintiff
stated that Swan pushed him “[t]o slide me over” and denied
any suggestion that Swan was actually trying to hurt him or
cause an injury with the pushing. (Pl.’s Dep. at 54.)[fn13]
Sanchez testified that he felt the push when Plaintiff’s
body pressed up against Sanchez, that Swan “shoved
[Plaintiff] kind of.” He also agreed that Swan never
treated Plaintiff angrily. (Sanchez Dep. at 25.) Plaintiff
opines that Swan was being “a jerk” only because Swan
sighed or otherwise expressed disgust with a short verbal
outburst, “[t]ch, like a `huh[,]'” just before he pushed
Plaintiff. (Pl.’s Dep. at 102, 104.) Swan never shrugged
his shoulders or made any particular facial expression at
Plaintiff. (Id. at 102.)

Even if the court were to infer that Swan was disgusted
with Plaintiff, a two-handed shove to slide Plaintiff into
the cramped back seat was not unreasonable under the
circumstances. As discussed above, Swan had no reason to
suspect that Plaintiff’s leg was in a precarious condition
and that a two-handed shove might snap the leg. Page 15
Instead, he had three young men, two of whom were handcuffed
and therefore less mobile and seated somewhat awkwardly, to
fit in the back seat of a patrol car that had limited leg
room due to the partition. Sliding the weight of Plaintiff,
along perhaps with some of the weight of Sanchez and
Fortuna, required some level of force. Swan, who had
already experienced difficulty closing the rear door, acted
reasonably to take the final step to secure Plaintiff and
his companions inside the patrol car. Under these
particular facts, the court must defer to the on-the-spot
judgment that Swan made at night on the side of the road
about the degree of force reasonably needed to insert
Plaintiff and close the back door. Burchett, 310 F.3d at
944. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates
the Fourth Amendment.” Graham, 490 U.S. at 396-97
(quotation omitted). Under the circumstances, and
considering all the relevant factors, the court finds that
there is no question of material fact regarding whether
Swan acted reasonably. He did.

The same conclusion is true for Defendant Paraski, whose
involvement was much more attenuated. He also had no
knowledge of the condition of Plaintiff’s leg. He therefore
had no reason to intervene with Swan’s handling of
Plaintiff or to warn Swan to handle Plaintiff gingerly.
Furthermore, only a few seconds elapsed between Plaintiff
expressing apprehension about getting in because of his leg
and Swan shoving Plaintiff. This rapid sequence afforded
Paraski no opportunity to intervene, even if he had reason
to do so. Generally, “a police officer who fails to act to
prevent the use of excessive force may be held liable when
(1) the officer observed or had reason to know that
excessive force would be or was being used, and (2) the
officer had both the opportunity and the means to prevent
the harm from occurring.” Turner v. Scott, Page 16 119
F.3d 425, 429 (6th Cir. 1997) (citing Anderson v. Branen,
17 F.3d 552, 557 (2d Cir. 1994)). Neither condition is
present in Plaintiff’s claim against Paraski. There is thus
no material question of fact regarding whether Paraski’s
action or inaction was, under the circumstances and
considering all the relevant factors, reasonable. It was.

The circumstances of Plaintiff’s case are analogous to
those of cases alleging excessive force due to
unnecessarily tight handcuffs. Common characteristics
include no dispute about the reasonableness of the initial
seizure but instead argument about the reasonableness of
the force applied to the plaintiff while in custody.
Handcuffing cases depend to a great extent upon the
defendant officers knowing the handcuffs were too tight and
ignoring specific pleas from the plaintiff to that effect
while in their custody. Lyons v. City of Xenia, 417 F.3d
565, 576 (6th Cir. 2005) (the plaintiff’s case could not go
to the jury because “she does not allege that her physical
complaints to the officers went unheeded”); Burchett, F.3d
at 944-45 (no excessive force when officers ignored no plea
that handcuffs were too tight and instead acted immediately
after the first complaint to loosen the handcuffs); Martin
v. Heideman, 106 F.3d 1308, 1310, 1313 (6th Cir. 1997)
(reversing directed verdict in favor of defendants when the
plaintiff’s hands were actually injured after thirty-five
minutes in tight handcuffs despite the plaintiff’s ignored
complaints about the tightness of the handcuffs); Meadows
v. Thomas, 117 Fed App’x 397 (6th Cir. 2002) (finding no
excessive force where alleged tightness of handcuffs
resulted in no physical injury and where tightening of
handcuffs was due to the plaintiff’s straining or the
movement of the police car and not due to action by the

Accordingly, in assessing the viability of an excessive
force claim, the court must be presented with evidence
demonstrating that the officer applying force upon a
person Page 17 already in custody had information, such as
a specific complaint from the arrestee, from which to know
that he was applying too much, i.e. constitutionally
unnecessary, force. Analogizing from the handcuffing cases
just discussed, had Plaintiff complained before (or, at the
latest, as) the force was used something similar to “my leg
doesn’t work, don’t hurt me” or “stop, you’re hurting my
leg,” such a verbalized warning combined with Plaintiff’s
previously exhibited limp might have been sufficient to
conclude that Swan was on notice that he could do serious

However, as explained above, taking the facts as they are,
neither Defendant knew or should have known that Plaintiff
was being, or about to be, handled too roughly or otherwise
needed to be treated more gingerly than a typical
seventeen-year-old arrestee. Plaintiff’s lack of a specific
understandable complaint and the resulting absence of
meaningful notice for Defendants regarding Plaintiff’s
vulnerable leg undercut Plaintiff’s claim of excessive

The court’s conclusions concerning the conduct of Swan and
Paraski are further supported in light of St. John, 411 F.3d
762. In that case, the Sixth Circuit reversed the district
court’s determination that the arresting officers were
entitled to qualified immunity on the plaintiff’s excessive
force claim. Id. at 775. Plaintiff, St. John, suffered from
muscular dystrophy and was wheel-chair bound. Id. at 765.
Importantly, the defendants had responded to St. John’s
home on a neighborhood trouble call, decided to effect a
custodial arrest then and there, and attempted to place him
in the back seat of a police car “after he explained that
his legs could not bend.” Id. (emphasis added). The court
again emphasized the fact that the plaintiff specifically
complained of an inability to bend his legs: “we conclude
there are genuine issues of material fact Page 18
regarding whether [the defendants] acted reasonably when
they attempted to place [the plaintiff] in the cruiser even
though he complained that his legs would not bend.” Id. at
771-72. The court stressed, “it is undisputed that [the
plaintiff] explained to the officers that he would not be
able to fit in the back seat due to his muscular
dystrophy.” Id. at 772.[fn14] The court commented that one
of the defendant’s arguments was “plainly not responsive to
[the plaintiff’s] objection to being placed in the back
seat. [The plaintiff] informed the officers that he could
not fit because his legs would not bend in light of his
disability.” Id. at 773. The court, viewing the facts in
the light most favorable to the plaintiff, concluded that
“a reasonable jury could find in his favor on the claim
that Defendants used excessive force in attempting to place
him in the back seat.” Id.

St. John does not require the same result in this case for
at least two reasons. First, Plaintiff, as detailed above,
did not notify Defendants of his medical condition. His
observable limp and his ambiguous statement about not
fitting in the rear seat “because of [his] leg” did not
have the effect of placing Defendants on notice that he
should be treated with caution due to his weakened femur.
In contrast, the plaintiff in St. John made specific
remarks to the defendants about his inability to bend his
legs because of muscular dystrophy. The evidence in St.
John supported a conclusion that the defendants clearly knew
of St. John’s condition, ignored his specific pleas and
made Page 19 repeated and sustained efforts to push, twist
and otherwise contort the plaintiff’s body to fit in the
police car. In this case, Swan did not ignore specific
pleas from Plaintiff. There were none. Rather, Swan in one
motion shoved Plaintiff sideways using only the force that
a reasonable officer would think was needed in order to
slide him over next to his companions. There is no
indication in the record here that more than that degree of
force was applied or even intended. Second, in St. John the
court noted that “the record does not suggest that exigent
circumstances demanded a very speedy arrest of St. John as
might be the case where officers needed to proceed quickly
to another location or to tend to an injured party.” Id. at

To the contrary, here the deputies were faced with exigent
circumstances requiring “a speedy arrest,” i.e., an
on-the-spot decision about the disposition of Plaintiff and
his back-seat companion, Sanchez. The driver was obviously
not going to be released to drive away. He was under arrest
for a felony. His Jeep was targeted for impoundment. It was
near midnight. They were in a rural area. Something had to
be done, and it would be obviously imprudent to leave
Plaintiff and Sancez alone by the side of the road.
Defendants’ decision to try to put Plaintiff in their rear
seat was not objectively unreasonable,[fn15] and the degree
of force used to accomplish that act was Page 20 likewise
within the range of reason. The resulting injury was,
needless to say, alarming and regrettable. But it was
neither reasonably foreseeable nor the result of any
unconstitutional application of force by the Defendants.

B. Gross Negligence under Michigan Law

The court has discretion to exercise jurisdiction over
Plaintiff’s state law claim. A district court may decline
to exercise jurisdiction over claims allowed in federal
court pursuant to subsection (a) if “the district court has
dismissed all claims over which it has original
jurisdiction[.]” 28 U.S.C. § 1367(c)(3). The court,
pursuant to the above analysis, has dismissed all claims in
this case over which it had original jurisdiction. The
court will, in the interests of judicial economy, reach
Plaintiff’s remaining claim of gross negligence under state

It is apparent, based on the above analysis under §
1983, that Defendants did not act with gross negligence.
Michigan law defines gross negligence as “conduct so
reckless as to demonstrate a substantial lack of concern
for whether an injury results.” Mich. Comp. Laws §
691.1407(2). Based on the court’s determination that there
is no question of fact regarding the reasonableness of
Defendants’ actions, Plaintiff could not possibly meet the
higher standard of presenting a question of fact regarding
gross negligence.


IT IS ORDERED that Defendants’ “Motion for Summary
Judgment” [Dkt #18] is GRANTED as to Counts I and IV. Upon
the stipulation of the parties, Counts II and III are

[fn1] The court will, pursuant to Federal Rule of Civil
Procedure 56, view the facts in the light most favorable to
Plaintiff as the nonmoving party and will therefore rely
primarily on his account. Furthermore, both Defendants
disavowed any specific recollection of these events beyond
what they read in the police report in preparation for
their depositions. (Swan Dep. at 8-9, Defs.’ Ex. B; Paraski
Dep. at 8, Defs.’ Ex. D.)

[fn2] Plaintiff’s doctor averred that, “unless it was
excessively cramped[,]” someone in Plaintiff’s condition
should be able to sit in the back seat of a car but that
the knee joint would have to be moved “more deliberately
and carefully.” (Zaltz Dep. at 29-30.)

[fn3] Sanchez avers that Swan swung (but did not slam) the
door, which bounced back off of Plaintiff. (Sanchez Dep. at
23, Pl.’s Ex. 6.)

[fn4] Sanchez states that he could feel the push when
Plaintiff’s whole body moved and hit Sanchez’s thighs and
that Swan “shoved [Plaintiff] kind of.” (Id. at 25.)

[fn5] Sanchez states that, as soon as the car began moving,
Defendants turned on the radio and had it at a volume where
one “could say something and not be heard.” (Id. at 47.)

[fn6] Sanchez, meanwhile, avers that Plaintiff was
handcuffed when Swan first tried shutting the door on
Plaintiff. (Id. at 26.)

[fn7] Sanchez, on the other hand, claims that only Plaintiff
made comments on the way to jail. (Id. at 29.)

[fn8] The parties filed an order stipulating that Counts II
and III are dismissed without prejudice. (11/27/06 Consent
Order.) The court’s opinion and order will therefore only
address Counts I (excessive force) and IV (gross

[fn9] The court recognizes that when questioned at his
deposition Plaintiff testified that he had consumed “four
or five beers.” (Pl.’s Dep. at 30.) On the night in
question he told the deputies that he had consumed “about
four” beers in addition to smoking marijuana. (Police
Report, Pl’s Ex. 2.) Plaintiff, in response to a question
from his attorney at deposition, said that he did not
“feel” that he was “drunk or intoxicated.” (Pl.’s Dep. at
33.) The court observes, first, that this testimony is in
the form of an opinion, and, second, that a
seventeen-year-old with five beers and an unknown quantity
of marijuana under his belt may not have been in the very
best position to opine as to his own sobriety. The
admissibility of a party’s opinion in such circumstances is

[fn10] The police report indicates a location of the
intersection of “30 Mile Road” with “Campground” which is a
rural road in northern Macomb County. (Pl’s Ex. 2.)

[fn11] The record, accordingly, does not support the
contention made in Plaintiff’s brief that he was forced
into the back seat “after he specifically explained the
limitations of his leg,” (Pl.’s Br. at 20), or that Swan
was “placed on notice of [Plaintiff’s] limitations by
plaintiff,” (id. at 22).

[fn12] Swan avers that, to the best of his knowledge,
department policy allowed for transport of three persons in
the back seat when two officers are present in the front
seat. (Swan dep. at 15-16, Pl.’s Ex. 4.)

[fn13] Plaintiff’s characterization, in his brief, that Swan
“with all the force he could muster, shoved plaintiff
sideways into the car[,]” (Pl.’s Br. at 13), therefore
finds no support in the record. This characterization is
wholly speculative regarding Swan’s strength. Furthermore,
Plaintiff’s denial that Swan was trying to injure him
clearly implies that if Swan had wanted to injure
Plaintiff, he could have applied more force, including “all
the force he could muster.” This Swan did not do, according
to Plaintiff’s sworn testimony. (Pl.’s Dep. at 54.)

[fn14] The plaintiff’s affidavit stated the following:

I told the officers that I would not fit in the back
seat. Because of my disability, my legs would not bend.
They paid no attention. Moreover, Officer Wolfe said that
he had bigger men transported in the back seat. So the two
officers continued to push with force to have me and my
legs inside the cruiser. As they pushed, moved, turned,
and twisted me and my legs, maneuvering me partially into
the back seat, my leg got caught between the police
cruiser and its back door, causing injury.”

St. John, 411 F.3d at 772.

[fn15] Indeed, the deputies likely had no choice in the
matter, and under these circumstances were obligated to
transport those in custody. In Davis v. Brady, 143 F.3d
1021 (6th Cir. 1998), officers, having no room at the
county jail, abandoned their drunk-and-disorderly arrestee
on a “forlorn” and unfamiliar rural highway after dark, and
the arrestee was later hit by an automobile. Id. at
1023-24, 1026. The Circuit Court rejected a qualified
immunity claim that there was no clearly established right
for arrestee not to be abandoned once in custody. Id. at
1026-27. While Defendant officers claimed that Plaintiff
had sobered up and had requested release in that area,
Plaintiff’s claim that he was still intoxicated and that
the officers acted to “teach [him] a lesson” had to be
credited for purposes of Rule 56 analysis. Id. at 1023,