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Batey v. County of Allegan

United States District Court, W.D. Michigan, Southern Division
Mar 14, 2002
Case No. 1:00-CV-450 (W.D. Mich. Mar. 14, 2002)

Opinion

Case No. 1:00-CV-450

March 14, 2002


OPINION


This case involves allegations of the use of excessive force on and subsequent denial of medical and mental health care to plaintiff Michael Batey while he was a pretrial detainee at the Allegan County jail. Batey filed this § 1983 action against the County of Allegan, five employees of the Allegan County jail, and two police supervisors for the County (collectively "defendants"), claiming violations of various constitutional rights, and alleging state law claims for gross negligence and battery. Before the Court is defendants' motion for summary judgment. For the reasons set forth below, the Court grants defendants' motion for summary judgment.

I. BACKGROUND

On September 11, 1998, plaintiff was arrested and charged with performing oral sex on his 14 year-old nephew. Plaintiffs Brief in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Opposition Brief") at 2. Pending trial, plaintiff was held at the Allegan County jail. On September 14, 1998, he tried to commit suicide by hanging himself in his cell. See id. at 2-3.

Defendant Doorlag was the first to arrive at plaintiffs cell, followed shortly thereafter by defendant Ullrey. Id. at 3. After cutting the sheet from the cell bars, Doorlag and Ullrey carried Batey from the cell Id.; see Brief in Support of Defendants' Motion for Summary Judgment ("Defendants' Brief in Support") at 2. It is at this point that plaintiff's and defendants' version of events diverges.

Defendants contend that plaintiff struggled with them, kicking defendant Merrill and knocking her to the floor, as Doorlag and Ullrey removed plaintiff from his cell. Id. at 2. They claim that Batey continued to struggle as Merrill, Doorlag, and Ullrey tried to remove the sheet from plaintiffs neck, gain control, and handcuff him. Id. Defendant Reck arrived last on the scene and assisted until plaintiff was handcuffed. Id. Defendants admit that Ullrey applied two radial strikes with his hand to Batey's forearm, but claim that Ullrey did so in order to gain control over Batey's hands in order to handcuff him. Id. Defendants also admit that Ullrey struck Batey twice on the thigh, but did so because Batey was resisting and kicking defendants Ullrey and Doorlag as they led him to the segregation cell. Id. at 3.

Plaintiff, on the other hand, claims that he did not resist the officers, and, "at most, either writhed on the ground or laid passively." Plaintiffs Opposition Brief at 3. He contends that the officers dropped him to the concrete from their shoulders, after removing him from his cell, thereby bloodying his face. Id. He also claims that as he lay face down on the floor outside his cell, an officer, whom he cannot identify but believes was either defendant Reck or Peters, "dropped with a knee drop into [his] lower spine and into [his] leg" and that defendant Peters kicked him in the hips when he was unable to stand up and walk. Deposition of Michael D. Batey, Plaintiff's Opposition Brief, Exh. B ("Batey Deposition") 4849, 51-52. Finally, he contends that defendants Reck and Peters dragged him to the segregation cell, striking him on the hips with their knees. Id. at 7-681.

The parties agree that Batey was taken to the segregation cell, where his clothes were removed and he was handcuffed and strapped into a restraint chair. Plaintiffs Opposition Brief at 4; Deposition of Paul Ullrey. Defendant's Brief in Support, Exh. 3 ("Ullrey Deposition") at 66-68. They also agree that Batey was covered with a blanket while he was restrained in the segregation cell. Batey Deposition at 82-83; Ullrey Deposition at 68. The parties disagree over the amount of time that Batey spent in the restraint chair: plaintiff contends that it was five to to six hours, while defendants claim it was approximately three hours. Plaintiffs Opposition Brief at 4; Defendant's Brief in Support at 3.

Plaintiff further contends that he was denied medical care for the injuries he suffered as a result of the alleged beating. He claims that he suffered a fractured right hip, physical pain, and mental anguish, incurred future medical expenses, and lost potential future earning capacity. First Amended Complaint and Jury Demand ("First Amended Complaint") ¶¶ 13, 20; see Batey Deposition at 95 (identifying right hip as fractured). Defendants argue that there was no beating, noting that both the contemporaneous and subsequent medical records indicate that Batey's right hip was not fractured. Defendants' Brief in Support at 4-5, 8. Defendants argue that any pain in plaintiffs right hip is attributable to a work-related injury suffered before Batey was arrested and detained at the Aliegan County jail. See id. at 8.

On June 23, 2000, Batey filed a seven-count complaint against defendants. The Court subsequently granted plaintiff leave to amend his complaint to add a state law claim for battery. See dkt. #34. In Count I of his first amended complaint, plaintiff contends that defendants Ullrey, Doorlag, Peters, Merrill, and Reck ("jail personnel") used excessive force to restrain him after his attempted suicide on September 14, 1998, and deliberately failed to intervene to protect him from the use of excessive force by jail personnel, thereby denying him rights guaranteed by the U.S. Constitution. First Amended Complaint ¶¶ 18-20. In Count II, plaintiff alleges that the conduct of jail personnel constituted cruel and unusual punishment Id. at ¶¶ 21-23. In Count III, he claims that defendants were deliberately indifferent to his need for medical care stemming from the alleged beating on September 14, 1998. Id. at ¶¶ 24-27. Plaintiff also alleges that Allegan County and defendants Haverdink and Ross were deliberately indifferent to prior charges of excessive force by officers at the jail (Count IV), and that the County and defendant Haverdink, with knowledge of past acts of misconduct, failed to adequately train officers as to the proper use of force and the need to provide detainees suffering from broken bones with medical care (Count VI). Id. at ¶¶ 28-36, 44-48. In Count V, plaintiff claims that the County has a custom or policy of not disciplining officers who use excessive force and of failing to provide medical are to detainees. Id. at ¶¶ 37-43. Count VII contains plaintiffs state law claim that all defendants, except the County, were grossly negligent, resulting in plaintiffs injuries Id. at ¶¶ 49-53. Finally, in Count VIII, plaintiff asserts a state law claim for battery against defendants Peters, Ullrey, Reck, and Doorlag. kit ¶¶ 54-58.

On July 9, 2001, defendants filed a motion for summary judgment as to all counts of plaintiffs complaint. See dkt. #25. On October 1, 2001, the Court heard oral argument and took defendants' motion under advisement. The Court now grants defendants' motion for summary judgment as to all counts of plaintiffs first amended complaint.

Although it appears that plaintiff has not exhausted his administrative remedies, the Court does not rest its decision on this basis because the parties already have briefed and argued the merits of defendants' motion for summary judgment. A prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 983 must exhaust available administrative remedies. See 42 U.S.C. § 1997e(a) (2001); see also Booth v. Churner, 532 U.S. 731 (2001). The term "prison conditions" in 42 U.S.C. § 1997e(a) encompasses lawsuits alleging use of excessive force. See Porter v. Nussle, No. 00-853, 2002 U.S. LEXIS 1373, at *9 (U.S. Feb. 26, 2002); Curry v. Scott, 249 F.3d 493, 504 (6th Cir. 2001). The exhaustion requirement also applies to claims by pretrial detainees. See Baksi v. Mitchell, No. 99-3789, 2000 U.S. App. LEXIS 9920, at *3 (6th Cir. May 5, 2000).
Plaintiff alleges in his first amended complaint that he has exhausted all administrative remedies. See First Amended Complaint at ¶ 7. An allegation that remedies have been exhausted, however, is not enough, as a plaintiff must provide decisions reflecting the administrative disposition of his claims or other evidence showing that he has exhausted his remedies. See Williams v. McGinnis, No. 98-1042, 1999 U.S. App. LEXIS 4704, at *3 (6th Cir. March 16, 1999). Plaintiff admits that during his nearly year-long stay at the jail he filed no grievances or complaints about his alleged mistreatment on September 14, 1998. See Batey deposition at 101-103. While plaintiff could have filed a grievance after leaving the jail, he does not provide the Court with a copy of any grievance, even though he attaches copies to his opposition brief of internal grievances filed by other pretrial detainees alleging the use of excessive force at the jail. Plaintiff also fails to provide the Court with any information about whether he used the County's grievance process and the disposition of any grievance that he filed. Finally, plaintiff never claims in his complaint or brief that a grievance process was unavailable, and, therefore, filing an internal complaint would be impossible.

II. STANDARD OF REVIEW

Summary judgment is proper when there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the Court looks beyond the pleadings, also considering any depositions, affidavits, and admissions on file, to determine whether there is a genuine issue of material fact. See Howard v. Calhoun County, 148 F. Supp.2d 883, 887 (W.D. Mich. 2001); see also Matshusita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In ruling on a motion for summary judgment, the Court "must draw all reasonable inferences in favor of the nonmoving party, and may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). The Court must "review the record as a whole . . . giv[ing] credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." See id. at 151 (citations omitted).

Nonetheless, one of the primary purposes of summary judgment "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Howard, 148 F. Supp.2d at 887. Thus, in opposing a properly supported motion for summary judgment, the nonmoving party may not simply rest on the bare allegations in its pleadings. See Fed.R.Civ.P. 56(e). "In opposing a properly supported motion for summary judgment. the nonmoving party must set forth sufficient specific evidence to permit a fair-minded jury to return a verdict in its favor." Mount v. United States Postal Serv., 79 F.3d 531, 533 (6th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Moreover, the party opposing summary judgment must produce more than a "scintilla of evidence" on essential elements of its claim in order to avoid summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Howard, 148 F. Supp.2d at 888. Merely showing the existence of "some metaphysical doubt as to the material facts" does not suffice to defeat a properly supported motion for summary judgment. Matshusita, 475 U.S. at 586 (citations omitted). A material fact is one that might affect the outcome of the case, taking into consideration the applicable substantive law. See Howard, 148 F. Supp.2d at 888 (citing Anderson, 477 U.S. at 248). In other words, summary judgment is proper when there is "[a] complete failure of proof [by the nonmoving party] concerning an essential element" of his claim. Howard,] 48 F. Supp.2d at 888 (citing Celotex, 477 U.S. at 322-23).

III. LEGAL ANALYSIS

A. Count I: Excessive Force

Batey alleges that defendants Ullrey, Peters, and Reck used excessive force when restraining him after his suicide attempt on September 14, 1998, and defendant Doorlag deliberately failed to intervene to protect him from the use of excessive force by other officers. Plaintiffs Opposition Brief at 1-112; First Amended Complaint ¶ 19. Batey claims that as a result of defendants' conduct, he suffered a fractured right hip, physical pain, mental anguish, potential future medical expenses, and the possible loss of future earning capacity. First Amended Complaint ¶ 20.

Plaintiff concedes that insufficient evidence exists to state a claim for use of excessive force against defendant Merrill. Plaintiffs Opposition Brief at 12. Therefore, the Court grants summary judgment in favor of defendant Merrill on Count I of plaintiffs first amended complaint.

As a preliminary matter, the Court notes that plaintiff fails to specify which constitutional right was infringed by defendants' alleged excessive use of force. The Supreme Court has expressly "reject[ed] [the] notion that all excessive force claims brought under § 983 are governed by a single generic standard." Graham v. Connor, 490 U.S. 386, 393 (1989). Instead, the analysis begins "by identifying the specific constitutional right allegedly infringed by the challenged application of force." Id. at 394 (citation and footnote omitted). The Court then examines the validity of plaintiffs claim "by reference to the specific constitutional standard which governs that right, rather than to some generalized 'excessive force' standard." Id. (citations omitted).

In his brief, plaintiff cites to Graham v. Connor, 490 U.S. 386 (1989), for the proposition that he was "constitutionally entitled to be free from excessive ( i.e. objectively unreasonable) force." Plaintiffs Opposition Brief at 9. Graham, however, involved a claim of excessive force during an investigatory stop, which the Supreme Court held implicated the Fourth Amendment. The objective reasonableness test cited by plaintiff in his brief is one used in the context of Fourth Amendment excessive force claims. See Graham, 490 U.S. at 397. The Supreme Court in Graham, however, specifically stated that it did not address whether the Fourth Amendment's protection extends "beyond the point at which arrest ends and pretrial detention begins. Graham, 490 U.S. at 395 n. 10. Moreover, the Sixth Circuit has acknowledged that the law in this Circuit "is unclear as to whether a pretrial detainee can bring a Fourth Amendment excessive force claim." Holmes v. City of Massillon, 78 F.3d 1041, 1049 n. 6 (6th Cir.), cert. denied, 519 U.S. 935 (1996). Plaintiff offers the Court neither case law nor legal argument to support a claim that the Fourth Amendment protects pretrial detainees from the use of excessive force. Therefore, the Court does not address plaintiffs excessive force claim using a Fourth Amendment analysis.

Instead, the Court analyzes plaintiffs excessive force claim under the Fourteenth Amendment's Due Process Clause, which affords pretrial detainees, like the plaintiff, protection "from the use of excessive force that amounts to punishment." Graham, 490 U.S. at 395 n. 10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-539 (1979)). The Court then must examine plaintiffs claim with regard to the standard applicable to claims of excessive force under the Fourteenth Amendment. The question is what standard applies to Fourteenth Amendment excessive force claims: the Eighth Amendment standard, the Fourth Amendment's objective reasonableness standard, or some other intermediate standard. See Wilson v. Williams, 83 F.3d 870, 875 (7th Cir. 1996) (citing cases applying various standards to Fourteenth Amendment excessive force claims).

The Sixth Circuit applies the Eighth Amendment's standard. In Webb v. Bunch, No. 93-5258, 1994 U.S. App. LEXIS 2331 (6th Cir. Feb. 8, 1994), the court, in analyzing plaintiffs excessive force claim, stated that while the Eighth Amendment does not apply to pretrial detainees, "the Eighth Amendment rights of prisoners are analogized to those of detainees under the Fourteenth Amendment to avoid the anomaly of extending greater constitutional protection to a [person convicted of a crime] than to one awaiting trial." Id. at *11 (quoting Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985)); see Watkins v. Evans, Nos. 95-4162, 95/4341, 1996 U.S. App. LEXIS 25355, at *7 (6th Cir. Sept. 3, 1996) (citations omitted) (holding that plaintiff, as a pretrial detainee, was "entitled to the same protection under the Eighth Amendment by way of the Fourteenth Amendment's Due Process Clause"). See also Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir.) (holding that the Eighth Amendment's standards apply to pretrial detainee's claim of excessive force arising in the context of a prison disturbance), cert. denied, 531 U.S. 821 (2000); United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999) (holding that the Eighth Amendment analysis in Hudson applies to excessive force claims brought under the Fourteenth Amendment); cf. Lucas v. Nichols, No. 97-2060, 1999 U.S. App. LEXIS 8151, at *4 (6th Cir. April 23, 1999) (citations omitted) (analyzing conditions of confinement claim by pretrial detainees under the Eighth Amendment, noting that "[t]he Eighth Amendment prohibition against cruel and unusual punishment applies to pretrial detainees through the Fourteenth Amendment Due Process Clause"); Thompson v. County of Medina, 29 F.3d 238, 242 (6th Cir. 1994) (citation omitted) (analyzing conditions of confinement claim by pretrial detainee under Eighth Amendment, stating that Fourteenth Amendment protects pretrial detainees and the Sixth Circuit "has made clear that such detainees are thus entitled to the same Eighth Amendment rights as other inmates"). Thus, the central inquiry in this case is whether defendants' use of force "was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically to cause harm." Webb, 1994 U.S. App. LEXIS 2331, at *11 (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Factors relevant to this inquiry are the need for jail officials to apply force, the relationship between the force required and the force used, and the extent of any injury inflicted Id. at *12 (citing Whitley v. Albers, 475 U.S. 312, 321 (1986)).

A prisoner, however, may not bring a § 1983 action "for mental or emotional injury suffered while custody without a prior showing of physical injury." See 42 U.S.C. § 1997e(e) (2001). The definition of prisoner includes pretrial detainees. See 42 U.S.C. § 1997e(h)(2001) (defining prisoner to include a person "detained in any facility who is accused of . . . violations of of criminal law"). The Sixth Circuit has held that in order to state a viable Eighth Amendment claim for excessive force, a prisoner must show actual physical injury. See, e. g., Lucas v. Nichols, No. 97-2060, 1999 U.S. App. LEXIS 8151, at *4 (6th Cir. April 23, 1999) (applying Eighth Amendment standards to conditions of confinement claim by pretrial detainee and noting that § 997e(e) requires a prisoner to show actual physical injury before bringing a claim for emotional or mental damages) Tensley v. Perry, No. 97-2280, 1999 U.S. App. LEXIS 1622, at *4 (Feb. 2, 1999) (stating that " 42 U.S.C. § 1997e(e) now requires that a prisoner show actual physical injury to recover for violations of his Eighth Amendment rights"). In two recent unpublished decisions, the Sixth Circuit has found that the physical injury suffered must be more than de minimis to support an Eighth Amendment excessive force claim. See Robinson v. Corrections Corp. of America, No. 99-5741, 2001 U.S. App. LEXIS 14438, at *3 (6th Cir. June 20, 2001) (citations omitted) (quoting § 1997e(e) and stating that "a physical injury must be more than de minimis to support a claim for mental or emotional suffering under the Eighth Amendment and § 1997e(e)"); Scott v. Churchill, No. 97-2061, 2000 U.S. App. LEXIS 6714, at *8 (6th Cir. April 6, 2000) (citations omitted) (stating that a "prisoner must allege that he sustained more than de minimis injury in order to state a viable excessive force claim"). Plaintiff need not show significant injury to make out an excessive force claim, but the extent of his injuries and the absence of serious injury are relevant to determine whether excessive force was used. See Hudson, 503 U.S. at 7, 9.

Prior to enactment of the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Sixth Circuit had held that actual injury was not required to state an Eighth Amendment excessive force claim. See Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993).

With these standards in mind, the Court turns to the question of whether a genuine issue of material fact exists for trial as to whether defendants used excessive force amounting to punishment against the plaintiff when restraining him after his suicide attempt on September 14, 1998. The Court finds that there is no genuine issue for trial because even drawing all reasonable inferences in favor of the plaintiff, he has failed to set forth sufficient specific evidence to permit a fair-minded jury to return a verdict in his favor.

First, plaintiff offers nothing but his own word that he was severely beaten and seriously injured as a result of defendants' actions on and after September 14, 1998. Plaintiff alleges that he was "kneed" in the back and on his left hip and buttock area. See Batey deposition at 52-53. He claims that his right hip was fractured as a result of defendants' excessive use of force. See id. at 95. He contends that his hip pops out of the socket at times, bringing tears to his eyes, and that he has collapsed from the pain on several occasions. See Plaintiff's Opposition Brief at 6; Batey deposition at 111. Yet, as defendants point out in their brief in support of summary judgment, there is no medical evidence in the record to support plaintiffs claim that he suffered a fractured right hip or many of the other injuries that he alleges he sustained on September 14, 1998. See Defendants' Brief in Support at 8-10.

Mary Elle Graham, who worked as a nurse at the jail, examined plaintiff on the day of the alleged beating. Affidavit of Mary Elle Graham, Defendant's Brief in Support, Exh. 8 ("Graham Affidavit") at 1. Graham states that plaintiff neither walked with an "abnormal gait" nor "complain[ed] of pain while walking." Graham Affidavit ¶ 5b. She performed "range of motion evaluations" on plaintiff, but found no "evidence of fracture, dislocation or other injury." Id. at ¶ 5c. According to Graham, the only complaint that plaintiff made was of pain in his left thigh. See id. at ¶ 4. Graham noted no bruising on plaintiffs left thigh, although he said it was tender to the touch. Id. at 5a. Graham found no medical condition warranting plaintiffs examination by the jail physician, although Graham did consult with the physician, who recommended giving plaintiff Naproxen for the discomfort in his left leg. Id. at ¶ 5d. When Graham conducted a follow-up examination 11 days later, on September 25, 1998, plaintiff had "no further complaints about his left thigh or either hip." Id. at ¶ 8.

Subsequent medical evaluation also reveals no evidence of a fractured right hip. In February of 2000, after his conviction and transfer to a state correctional facility, the Michigan Department of Corrections performed performed an x-ray on plaintiffs right hip and pelvis. See Plaintiff's Opposition Brief at 6; Batey deposition at 109-110; Deposition of Lyle S. Mindlin, D.O., Defendant's Brief in Support, Tab 14 ("Mindlin Deposition"), Exh. A. Lyle Mindlin, DO., who examined plaintiffs x-ray, stated in his deposition that he saw no evidence of either a current or older fracture of plaintiffs right hip. Mindlin Deposition at 1416, Exh. A. Dr. Mindlin stated that even for an older fracture in a weight-bearing joint, such as the hip, typically some evidence of that fracture would appear on an x-ray. Id. at 14-16, 24.

Plaintiff responds by attacking Dr. Mindlin's objectivity, stating that Mindlin "reads x-rays for the Corrections Department at $7.00 a pop." Plaintiffs opposition Brief at 6. Aside from this unsubstantiated statement, plaintiff offers no evidence that Dr. Mindlin's deposition testimony is tainted by self-interest. Furthermore, plaintiff offers no medical evidence of his own to contradict the opinion put forward by Dr. Mindlin.

Defendants also offer evidence that plaintiff had a preexisting workers compensation injury, which defendants claim accounts for the pain in plaintiffs hip. See Defendants' Brief in Support at 8, Exhs. 15 16. Plaintiff has not objected to the Court's consideration of these two exhibits. See Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994) (stating that failure 10 object "to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment" constitutes a waiver of those objections). Nonetheless, the Court does not consider these exhibits in ruling on defendants' motion for summary judgment because both documents are unsigned, computer printouts with no affidavit attached explaining who prepared the information contained in the exhibits.

Second, even though plaintiff was detained at the jail for nearly a year, he admits that he did not file a grievance during that time about the beating that allegedly occurred on September 14, 1998 See Batey deposition at 58, 102-103. While plaintiff claims that he told both Nurse Graham and Rosalie Hunter that he had been beaten, he offers neither deposition testimony nor affidavits from either woman to support this assertion. See Batey.

Deposition at 87-88, 90, 94-95.

Third, none of the records made by medical or counseling personnel at the Allegan County jail (none of whom are defendants in this action) indicate that plaintiff ever complained of a beating while he was detained at the jail. During his detention at the jail, plaintiff saw three different nurses on four separate occasions. Yet, the medical records completed by these three nurses (and attached to their signed affidavits) make no mention of any complaints by the plaintiff of a beating sustained at the hands of jail personnel. See Graham Affidavit at ¶ 6, 10 Exh. I (notes of examination of plaintiff conducted on September 14, 1998, and September 25, 1998); Affidavit of Eleanor Heeringa, Defendants' Brief in Support, Exh. 10 ("Heeringa Affidavit") ¶ 5 Exh. 1 (medical form completed by Heeringa of exam conducted on plaintiff on October 28, 1998); Affidavit of Renee K. Hibma, Defendants' Brief in Support, Exh. 12 ("Hibma Affidavit") ¶¶ 3, 7 Exh. I (medical notes of exam performed on plaintiff on July 19, 1999).

Plaintiff also saw Rosalie Hunter, the jail counselor, seven times after his suicide attempt at the jail. Once again, Hunter's notes of her sessions with the plaintiff, attached to her signed affidavit, evidence no complaints by the plaintiff of a beating sustained at the hands of jail personnel. Affidavit of Rosalie A. Hunter, Defendants' Brief in Support, Exh. 7 ("Hunter Affidavit") ¶¶ 5, 8 Exh. 1 (notes of suicide evaluation on September 14, 1998, and of counseling sessions with plaintiff on September 15, 1998, October 20, 1998, November 16, 1998, December 17, 1998, March 10, 1999, and May 21, 1999).

In Rembert v. Holland, 735 F. Supp. 733 (W.D. Mich. 1990), the district court faced facts similar to those in the instant case. The medical records in Rembert bore "no indication of any injury." Rembert, 735 F. Supp. at 737. The nurse who examined Rembert three days after his alleged beating noted no injuries. See id. Rembert filed no grievance about the alleged beating and there was no evidence that he complained about any beating until almost two years later. See id.

The court in Rembert noted its concern that it could be criticized for weighing the credibility of witnesses on a motion for summary judgment. See id. The court recognized that its role was to determine whether plaintiff had a plausible legal claim and that making a determination of factual implausibility might open the court up to criticism. See id. Nonetheless, the court concluded that summary judgment was proper because if the case went to trial, no rational trier of fact could rule in favor of Rembert, the plaintiff. See id.

This case is very similar to Rembert. To begin with, plaintiff has provided nothing but his own word that he was beaten on September 14, 1998. He has offered no medical evidence to support his allegation that he suffered a severe beating on September 14, 1998. In fact, the medical evidence in the record indicates that plaintiff suffered nothing more than a sore left thigh on the day of the alleged beating A sore left thigh, however, is not a serious injury. In fact, there were no bruises on plaintiffs left thigh, even though Nurse Graham did not exam plaintiff until several hours after the alleged beating, by which time a bruise presumably would have appeared. The medical records do not indicate that plaintiff ever complained that the pain in his left thigh persisted or recurred. Plaintiff also admits that he was never placed on any medical restrictions that precluded him from participating in activities at the jail. See Batey deposition at 114-115. Thus, the Court concludes that plaintiffs sore left thigh was a de minimis injury. See Robinson, 2001 U.S. App. LEXIS 14438, at *3; Scott, 2000 US. App. LEXIS 6714, at *8 A de minimis injury, in turn, suggests that any use of force by defendants was de minimis. See Hudson, 503 U.S. at 9-10 (noting that the Eighth Amendment excludes from its protection the de minimis use of physical force).

At oral argument, plaintiffs counsel argued that the strikes administered to plaintiffs forearm and thigh by defendant Ullrey could form the basis for an excessive force claim. The Court disagrees. Plaintiff has alleged no injury to his forearm as a result of defendant Ullrey's actions. See Scott, 2000 U.S. App. LEXIS 6714, at *8 (finding plaintiff prisoner's Eighth Amendment claim without merit because he had suffered no injury): Lucas, 1999 US. App. LEXIS 8151, at **5-6 (holding that district court had properly dismissed plaintiffs case because he had not claimed any mental, emotional, or physical injury). While the medical evidence in the record shows that plaintiff complained of a tender left thigh, this injury is de minimis. Moreover, plaintiff admits that after defendants cut him down after his suicide attempt, he was crying, asking to be allowed to die, and writhing on the ground. See Plaintiff's Opposition Brief at 3. Thus, some force was necessary to restrain him. See Hudson, 503 U.S. at 7 (stating that the need for force is one factor in evaluating whether the use of force was wanton and unnecessary); Webb, 1994 U.S. App. LEXIS 2331, at * 12 (stating that need for force was one factor in evaluating whether use of force was applied maliciously and sadistically to cause harm). The de minimis nature of plaintiffs injury — a sore left thigh — confirms the Court's conclusion that defendants' use of force was de minimis and not inflicted maliciously and sadistically to cause harm. See Hudson, 503 U.S. at 9-10.

In addition, plaintiff admits that during his nearly yearlong stay at the jail he filed no grievances or complaints about his alleged mistreatment on September 14, 1998. See Batey deposition at 101-103. While plaintiff has attached to his brief Allegan County Sheriff Department tracking reports of complaints of excessive force made by other pretrial detainees, he does not provide the Court with a copy of any grievances that he filed. Moreover, neither the nurses nor the counselor at the Allegan County jail, who saw plaintiff at least eleven times on and after September 14, 1998, report that he claimed that he had been beaten by jail personnel.

In conclusion, there are no medical reports, no psychological reports, no grievance reports with regard to plaintiffs allegations, and no affidavits or depositions from other medical or mental health personnel, to support plaintiffs claim of excessive force. In this case, the evidence is "is so one-sided that [defendants] must prevail as a matter of law." Anderson, 477 U.S. at 252. In response to defendants' well-supported motion for summary judgment, plaintiff has failed to "set forth sufficient specific evidence to permit a fair-minded jury to return a verdict in its favor." Mount v. United States Postal Serv., 79 F.3d 531, 533 (6th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)); see Vaughn v. City of Lebanon, Nos. 99-6670, 99-6672, 99-6673, 99-6675, 99-6676, 2001 U.S. App. LEXIS 18935, *41 (6th Cir. Aug. 16, 2001) (citations omitted) (finding that trial court's order granting summary judgment was proper because when the evidence was "[t]aken as a whole, [no] rational trier of fact could find for plaintiff'). Accordingly, the Court grants summary judgment to defendants on Count I of plaintiffs first amended complaint.

B. Count II: Eighth Amendment- Cruel and Unusual Punishment

Plaintiff has withdrawn Count II. See Plaintiff's Opposition Brief at 12. Therefore, the Court grants summary judgment in favor of defendants on this count of the first amended complaint.

C. Count III: Deliberate Indifference to Medical Needs

Plaintiff claims that he needed medical care for his "fractured hip and other sequelae," as a result of the alleged beating he sustained on September 14, 1998, but defendants were deliberately indifferent to his medical care needs. First Amended Complaint ¶¶ 25-26. Plaintiff apparently also includes as part of his claims in Count III the defendants' deliberate indifference to his mental health needs after his suicide attempt. See Plaintiff's Opposition Brief at 13-14. Plaintiffs deliberate indifference claim, however, fails because, even drawing all reasonable inferences in his favor, he is unable to satisfy the objective component of the deliberate indifference standard. See Napier v. Madison County, 238 F.3d 739, 743 (6th Cir. 2001) (affirming decision of district court, which did not consider subjective component of deliberate indifference standard, finding that failure to satisfy the objective component was dispositive).

At the time of the alleged beating, plaintiff was a pretrial detainee. Pretrial detainees retain at least those constitutional rights enjoyed by convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 545 (1979). The Eighth Amendment's Cruel and Unusual Punishment Clause protects prisoners from "prison officials [who] are so deliberately indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict pain." Horn v. Madison County Fiscal Ct., 22 F.3d 653, 660 (6th Cir.) (citing Estelle v. Gamble, 429 U.S. 97 (1976)), cert. denied, 513 U.S. 873 (1994). "Pretrial detainees are analogously protected from such mistreatment under the Due Process Clause of the Fourteenth Amendment." Id. (citations omitted). Moreover, a pretrial detainee's "psychological needs may constitute serious medical needs, especially when they result in suicidal tendencies." Id. (citations omitted).

The Sixth Circuit has held that there is both an objective and a subjective component to the deliberate indifference standard. Napier, 238 F.3d at 742; Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). In order to satisfy the objective component of the deliberate indifference standard, plaintiff must present evidence that his detention at the Allegan County jail was "under conditions posing a substantial risk of serious harm." Vaughn, 2001 U.S. App. LEXIS 18935, at *58 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). On the day of the alleged beating, both Mary Elle Graham, a registered nurse who worked at the jail, and Rosalie Hunter, a social worker and the jail counselor, examined plaintiff. Batey Deposition at 86-87; Hunter Affidavit ¶ 4 Exh. 1. Plaintiff, however, did not receive immediate medical and mental health care attention after his attempted suicide because he spent several hours in the jail's segregation cell. Thus, the Court must decide whether the several-hour delay in providing Batey with medical and mental health treatment while he was restrained in the segregation cell "rises to the level of a Due Process violation." Vaughn, 2001 U.S. App. LEXIS 18935, at * 58. In order to do so, Batey "must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment." Napier, 238 F.3d it 742 (quoting Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir. 1994)).

Plaintiff has provided no medical evidence to satisfy the objective component of the deliberate indifference standard. In fact, the medical evidence in the record demonstrates that plaintiff was not bruised, had no fractured hip, and walked normally on the day of the alleged beating. See Graham Affidavit. Medical records of subsequent visits to various jail nurses bear no indication that Batey complained of pain in his back, hips, or legs, or recounted a beating suffered at the hands of jail personnel. See Graham Affidavit ¶ 8; Heeringa Affidavit ¶¶ 5e, 6, 7; Hibma Affidavit ¶¶ 6e, 7-9. Dr. Mindlin, who examined the x-ray performed on Batey's right hip and pelvis, found no evidence of a fracture. See Mindlin Deposition at 14-16, 24. Plaintiff not only fails to offer any medical testimony to show that he suffered a fractured right hip, he also fails to produce any medical evidence demonstrating that the delay in seeing Nurse Graham or other medical personnel exacerbated any injuries that he allegedly suffered.

Plaintiffs claim of deliberate indifference to his mental health needs is similarly deficient. Hunter, the jail counselor, examined plaintiff on September 14, and she conducted a "full interview" with plaintiff the following day, September 1:5. Hunter Affidavit, ¶¶ 46 Exh. 1. Hunter saw Batey on at least five more occasions during his detention at the Allegan County jail. See id. at ¶¶ 3, 8 Exh, 1.

Plaintiff claims that he should have been sent to a psychiatric hospital for evaluation, but nothing in the record reveals any injury he allegedly suffered because he was seen by a jail counselor rather than being hospitalized after his suicide attempt. Batey did not try to kill himself again, and he admits that his suicide attempt was a "[o]nce in a lifetime thing." Batey Deposition at 54. In his complaint, Batey alleges that he suffered mental anguish. First Amended Complaint ¶ 20d. He offers no medical evidence, however, to tie his emotional distress to the delay in seeing the jail counselor or to the failure to hospitalize him immediately after his suicide attempt. In fact, plaintiff provides no medical evidence or mental health records indicating any injury to his mental health suffered as a result of defendants' actions.

In conclusion, plaintiff has failed to provide any medical or mental health records showing that he suffered a fractured hip or any mental health injury as a result of defendants' actions. Neither the medical nor mental health records indicate that any delay in securing medical or mental health care for plaintiff on or after September 14, detrimentally affected his health. As a result, there is a complete failure of proof on the objective component of the deliberate indifference standard, which is an essential element of plaintiffs claim in Count III. Accordingly, the Court grants defendants' motion for summary judgment as to Count III of the first amended complaint.

Plaintiff agrees that summary judgment should be granted in favor of defendants Ross and Merrill. See Plaintiff's Opposition Brief at 14.

D. Counts IV and V: Deliberate Indifference to Prior Claims of Misconduct and Custom and Policy 1. Excessive Force Claims: Custom of Inaction (Counts IV V)

The Court's discussion includes plaintiffs allegations of deliberate indifference to prior claims of misconduct, contained in Count IV, and his claim in Count V that the County, through its failure to discipline officers for using excessive force, created a custom or policy of condoning the use of excessive force. See First Amended Complaint, ¶¶ 29-35, 39-40; Plaintiff's Opposition Brief at 15-17. The Court discusses plaintiffs allegations that the County established a formal policy of condoning the use of excessive force against pretrial detainees infra at Part III.D.2.

Plaintiff alleges that defendants the County, Haverdink, and Ross were aware that officers at the jail had used excessive force on other detainees prior to the beating that allegedly occurred on September 14, 1998. First Amended Complaint ¶ 29. Plaintiff claims that no action was taken to discipline these officers, thereby encouraging and condoning the use of excessive force against pretrial detainees. Id. at ¶¶ 30, 33-35, 39-42.

In order to recover against the County, Ross, and Haverdink under § 1983, plaintiff must "establish that an officially executed policy, or the toleration of a custom within the [County] [led] to, cause[d], or result[ed] in the deprivation of a constitutionally protected right" Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996) (citing Monell v. Dept. of Social Servs, 436 U.S. 658, 690-91 (1978)). Recovery cannot be premised on respondeat superior. Doe, 103 F.3d at 507.

Plaintiff argues that by allegedly failing to discipline jail personnel for using excessive force, defendants condoned and encouraged the use of excessive force against pretrial detainees at the jail. See Plaintiff's Opposition Brief at 15-17. In other words, plaintiff claims that defendants' custom of not acting on complaints about the use of excessive force by officers at the jail caused the excessive force to which he now alleges he was subjected. See Doe, 103 F.3d at 208 (citation omitted) (stating that "a 'custom' is a "legal institution' not memorialized by written law"). To state a claim for liability on an "inaction" theory, plaintiff must establish the following: (1) a clear and persistent pattern of the use of excessive force by officers at the jail; (2) actual or constructive notice to the County, Ross, and Haverdink; (3) tacit approval of the misconduct by the County, Ross, and Haverdink, such that their deliberate indifference in their failure to act amounts to an official custom of inaction; and (4) that the custom of inaction was the "moving force" or direct causal link in the alleged deprivation of plaintiffs constitutional rights. See id. (citations omitted).

Even if plaintiff could establish a custom of inaction, his claim must fail because he cannot demonstrate that defendants' conduct resulted in the deprivation of a constitutional right. In Part III.A, the Court granted summary judgment to defendants because the evidence was so one-sided that no rational trier of fact could conclude that plaintiff had suffered a beating while detained in the Allegan County jail. Therefore, because plaintiff cannot show that he suffered an underlying constitutional violation, his claims against the County, Ross, and Haverdink based on deliberate indifference to prior acts of misconduct must fail. See Napier, 238 F.3d at 74 (noting that because plaintiff could not show an underlying constitutional violation, his claims against the County also failed); Anderson v. Anta, No. 98-1657, 1999 US. App. LEXIS 21661, at *14-15 (6th Cir. Sept. 7, 1999) (holding that plaintiff could not succeed in her § 1983 claims against the township because she had failed to survive summary judgment on her underlying § 1983 claim of a constitutional deprivation by a township officer).

Plaintiff fails to present sufficient evidence to show the existence of a custom of inaction. of the six exhibits offered by plaintiff, only four are relevant to his argument that a custom of inaction existed prior to September 14, 1998. See Plaintiff's Opposition Brief at 2 Exh. P (stating a complaint for use of force in mid-October of 1998, after plaintiffs alleged beating); dkt. #33 (stating no allegations that officers at the jail used excessive force against the affiant, Darrell Bounds). The use-of-force complaints, contained at Exhibits H, I, O Q of plaintiffs opposition brief, clearly indicate that each of the four incidents involving allegations of use of force was investigated. See Plaintiff's Opposition Brief, Exhs. H, I, O, Q. Undertaking an investigation, even if conducted in a shoddy manner, does not amount to deliberate, intentional indifference to charges of excessive force. See Doe, 103 F.3d at 508. Finally, the affidavit by Deborah Johnson, contained at Exhibit R, contains inadmissible hearsay. See Jacklyn v. Schering-Plough Healthcare Prods., 176 F.3d 921, 927 (6th Cir. 1999) (citation omitted) (stating that "[h]earsay evidence may not be considered on summary judgment").

2. Formal Policy Condoning Excessive Force (Count V)

Plaintiff alleges that Sheriff Haverdink adopted a policy, on behalf of the County, not to discipline employees who used excessive force. See Plaintiff's Amended Complaint a ¶ 39. Plaintiff offers absolutely no evidence of an affirmative County policy condoning the use of excessive force. Therefore, summary judgment is appropriate as to these allegations.

3. Mental Health Care Policy (Count V)

Plaintiff claims that the County had a policy of tying inmates who had attempted suicide to a chair, rather than hospitalizing them for psychiatric care. See Plaintiff's Opposition Brief at 15. In order to state a claim against the County pursuant to § 1983, however, plaintiff must show that the County's policy or custom caused his injury, in violation of his constitutional rights. See Napier, 238 F.3d at 743; Stemler v. City of Florence, 126 F.3d 856, 865 (1997), cert. denied, 523 U.S. 1118 (1998). Plaintiff, however, has failed to produce any evidence of injury to his mental health, in violation of his constitutional rights. See supra Part III.C. Without evidence of injury, plaintiffs claim that a County custom or policy caused him injury fails.

4. Denial of Medical Care: Custom of Inaction (Count V)

Plaintiff summarily states in his opposition brief that "there is ample evidence that the . . . denial of medical care [was] the outgrowth of the de facto customs and policies which characterize the operation of the Allegan County jail." Plaintiffs Opposition Brief at 16. Apart from this conclusory statement, plaintiff otherwise completely fails to develop this argument in his brief. In other words, plaintiff offers the Court nothing more than what he alleged in his first amended complaint on the issue of whether a de facto custom existed with regard to the denial of medical care at the Allegan County jail. See First Amended Complaint at ¶ 38. Because plaintiff has done nothing more than rest on the bare allegations in his pleadings, summary judgment is appropriate because there has been a complete failure of proof as to his claim of a de facto custom at the Allegan County jail of denying medical

care to pretrial detainees. See Fed.R.Civ.P. 56(e); see also Howard, 148 F. Supp.2d at 888 (stating that a complete failure of proof on an essential element of plaintiffs claim renders any other facts immaterial).

Moreover, this Court already has found that plaintiff has failed to provide any medical evidence showing that he suffered a fractured hip or that any delay in securing medical care for plaintiff on or after September 14, detrimentally affected his health. See supra Part III.C. Therefore, because plaintiff cannot show that he suffered an underlying constitutional violation, his claim against the County based on a defact custom of denying pretrial detainees medical care must fail. See Napier, 238 F.3d at 743; Anderson, 1999 U.S. App. LEXIS 21661, at * 14-15.

In conclusion, the Court grants summary judgment to defendants the County, Ross, and Haverdink on Count IV of the first amended complaint. The Court also grants summary judgment in favor of defendant the County on Count V.

E. Count VI: Deliberate Indifference and Failure to Train

Plaintiff concedes that summary judgment is proper on Count VI because "the evidence does not show a sufficiently abject failure to train as to rise to the level of a constitutional violation." Plaintiffs Opposition Brief at 18. Accordingly, the Court grants summary judgment in favor of the defendants on Count VI of the first amended complaint.

F. Count VII: Gross Negligence

In his first amended complaint, plaintiff alleges that the gross negligence of defendants Haverdink, Ross, Ullrey, Doorlag, Peters, Merrill, and Reck resulted in injury to his hip, pain and suffering, mental anguish, potential future medical expenses, and loss of future earning capacity. See First Amended Complaint ¶¶ 49-53. The Court concludes that defendants are entitled to summary judgment because plaintiff has failed to produce sufficient specific evidence of excessive force and injury to his mental health, on which his claims of gross negligence are founded.

Plaintiff agrees that claims of gross negligence may not be maintained against defendants Merrill, Haverdink. Ross, and the County. See Plaintiff's Opposition brief at 19. Therefore, the Court grants summary judgment to defendants Merrill, Haverdink, and Ross on Count VII of plaintiffs first amended complaint. Plaintiff did not bring a claim for gross negligence against the County. See First Amended Complaint at ¶¶ 49-53.

As a preliminary matter, the Court notes that the section of plaintiffs brief discussing the issue of gross negligence is devoid of any references to the record to support his claim that defendants' conduct amounted to gross negligence. See Mount, 79 F.3d at 533 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)) (noting that "the nonmoving party must set forth sufficient specific evidence" in opposing a motion for summary judgment). It is not the obligation of the Court to scour the record or other sections of plaintiffs brief to find evidence supporting his claim of gross negligence.

Even taking plaintiffs conclusory statement on its face, however, the Court finds that summary judgment is proper. First, plaintiffs allegations that defendants beat him on September 14, 1998, state a claim for battery, not gross negligence. The Court addresses plaintiffs state law battery' claim in Part III.G of this opinion.

Second, plaintiff claims that defendants' failure to protect him from the excessive force of other officers amounted to gross negligence. The Court already has granted summary judgment to defendants on plaintiffs excessive force claim. See supra Part III.A. Having failed to provide sufficient specific evidence of excessive force, plaintiff cannot prevail on a claim that defendants' failure to stop other officers from engaging in such force amounts to gross negligence.

Third, plaintiff alleges that defendants shackling him to a restraint chair amounts to gross negligence. Plaintiff fails to explain how the mere act of shackling him to a restraint chair for 3-5 hours amounts to gross negligence. The Court assumes, based on the remainder of plaintiffs brief, that plaintiff argues that shackling him to the restraint chair, rather than immediately hospitalizing him for psychiatric evaluation, constituted gross negligence. See Plaintiff's Opposition Brief at 15 (arguing that County had a policy of shackling inmates who had attempted suicide to a restraint chair rather than hospitalizing them for psychiatric care).

Plaintiffs argument is flawed. Michigan law affords government employees, such as the defendants, immunity from tort liability, if the employee, while in the course of employment, (1) acts or reasonably believes he acts within the scope of his authority, (2) the government agency is exercising or discharging a governmental function, and (3) the employee's conduct does not amount to gross negligence that is the proximate cause of defendant's injuries. MICH. COMP. LAWS § 691.1407 (2) (2001). The Michigan statute 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)(c) (2001). The Michigan Supreme Court has held that the Michigan legislature provided immunity from tort claims to state employees "unless the employee's conduct amounts to gross negligence that is the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause." Robinson v. City of Detroit, 462 Mich. 439, 462 (2000). The record, however, is devoid of any evidence that use of a restraint chair to gain control of an inmate who has just attempted suicide is either a reckless disregard for the inmate's mental health or that plaintiff suffered any injury to his mental health as a result of being shackled to the restraint chair for several hours. See supra Part III.C. As a result, plaintiff cannot show that defendants' conduct was the proximate cause of any injury.

The Michigan legislature amended § 691.1407, effective October 24, 2000, to provide that government employees are not granted immunity "with respect to providing medical care or treatment to a patient," unless that care is provided in a hospital owned and operated by a department of community health or the department of corrections. MICH. COMP. LAWS § 691.1407(4) (2001). This amendment does not apply to a cause of action that arose prior to October 24, 2000, and, therefore, does not apply to the facts of this case. See Enacting section 1, Mich. Legis. Serv. P.A. 318 (H.B. 5063) (2000).

Accordingly, the Court grants summary judgment to defendants on Count VII of plaintiffs first amended complaint.

G. Count VIII: Battery

In Count VIII of his first amended complaint, plaintiff claims that defendants Peters, Ullrey, Reck, and Doorlag committed battery when they beat him on September 14, 1998. First Amended Complaint at ¶¶ 55-57. Yet, once again, plaintiff fails to provide the Court with legal analysis of his claim that defendants' conduct amounted to a battery, in particular given the fact that jail and prison officers are required, at times, to restrain prisoners, apply force, and engage in nonconsensual touching. See Burns v. Malak, 897 F. Supp. 985, 988 (E.D. Mich. 1995) (stating that no tort occurs when a police officer "use[s] substantial, but necessary, force to subdue a suspect, resulting in injury to the suspect"). The Court understands that plaintiffs opposition brief was filed prior to amending his complaint to add a claim for battery. Nonetheless, in his opposition brief, plaintiff requested leave to amend to add a battery claim, recognizing that his gross negligence claim did not apply to allegations of an intentional beating by officers at the jail. See Plaintiff's Opposition Brief at 18. Yet, the only legal authority or analysis offered in plaintiffs brief for the proposition that defendants' conduct amounted to a battery is his citation to a standard jury instruction definition of battery.

The problem with resting any argument simply on the definition of battery is that the definition does not account for legitimate exceptions created to accommodate the realities of law enforcement work. Michigan law defines a battery as "the wilful and harmful or offensive touching of another person which results from an act intended to cause such a contact." Espinoza v. Thomas, 189 Mich. App. 110, 119 (1991) (citations omitted). Under Michigan law, "an arresting officer may use such force as is reasonably necessary to effect a lawful arrest." Young v. Barker, 158 Mich. App. 709, 723 (1987) (citation omitted), appeal denied, 429 Mich. 857 (1987). In other words, the use of reasonable force in effecting an arrest defeats a claim for battery based on nonconsensual touching. See Rueckert v. City of Flint, 997 F. Supp. 856, 865 (E.D. Mich. 1998). "Michigan courts have also recognized that Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue.`" Anderson, 1999 U.S. App. LEXIS 21661, at *16 (quoting People v. Hanna, 223 Mich. App. 466, 474 (1997), appeal denied 459 Mich. 1005 (1999)); see Gully v. City of Southfield, No. 223080, 2001 Mich. App. LEXIS 2304, at *5 (Mich.Ct.App. Nov. 13, 2001) (same).

Although plaintiffs claim for battery did not arise in the context of an arrest, the rationale underlying the Michigan case law exception for battery claims against arresting officers also applies to battery claims based on the use of force by officers in a jail. Jail employees, by definition, must touch and restrain persons detained at the facility. If every restraint amounted to a battery, jail officials would be unable to perform their jobs.

Of course evidence showing the use of excessive force would defeat defendants' motion for summary judgment as to plaintiffs state law battery claim Cf. Rueckert, 997 F. Supp. at 865 (granting summary judgment to defendants on plaintiffs battery claim because there was probable cause to arrest the plaintiff and there were no allegations of excessive force). The Court, however, already has found that when the evidence is" [t]aken as a whole, no rational trier of fact could find for plaintiff' on his excessive force claim Vaughn, 2001 U.S. App. LEXIS 18935, at *41 (citations omitted).

In addition, plaintiff admits that he was emotionally distraught and writhing on the ground after he was cut him down following his suicide attempt. See Plaintiff's Opposition Brief at 3. Thus, some force was needed to restrain him. The Court has already found that the de minimis nature of plaintiffs injury- a sore left thigh — confirms that defendants used only de minimis force in restraining him. In other words, the force used was reasonably necessary to restrain plaintiff following his attempted suicide. The mere fact that jail personnel could have used less painful or more effective force in restraining plaintiff does not make out a claim for battery under Michigan law. Accordingly, defendants are entitled to summary judgment on Count VIII of plaintiffs first amended complaint.

IV. CONCLUSION

The Court grants defendants' motion for summary judgment (dkt. #25) and dismisses, with prejudice, plaintiffs first amended complaint. The Court will enter an order consistent with this opinion. Date: March 14, 2002

ORDER

In accordance with this Court's opinion of even date,

IT IS ORDERED that defendants' motion for summary judgment (dkt. #25) is GRANTED.

IT IS FURTHER ORDERED that plaintiffs first amended complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.


Summaries of

Batey v. County of Allegan

United States District Court, W.D. Michigan, Southern Division
Mar 14, 2002
Case No. 1:00-CV-450 (W.D. Mich. Mar. 14, 2002)
Case details for

Batey v. County of Allegan

Case Details

Full title:MICHAEL D. BATEY, v. COUNTY OF ALLEGAN, DAVID HAVERDINK, Sheriff Allegan…

Court:United States District Court, W.D. Michigan, Southern Division

Date published: Mar 14, 2002

Citations

Case No. 1:00-CV-450 (W.D. Mich. Mar. 14, 2002)

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