Eggerson v. Hessler ( 2007 )


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  •                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0121n.06
    Filed: February 15, 2007
    05-2333
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    DELORES EGGERSON, Personal                            )
    Representative of the Estate of Leon                  )
    Dandredge, Deceased,                                  )
    )
    Plaintiff-Appellant,                          )
    )
    v.                                                    )    ON APPEAL FROM THE UNITED
    )    STATES DISTRICT COURT FOR THE
    MARK HESSLER,                                         )    WESTERN DISTRICT OF MICHIGAN
    )
    Defendant-Appellee.                           )
    Before: BOGGS, Chief Judge, DAUGHTREY, Circuit Judge, and MILLS,* District
    Judge.
    MARTHA CRAIG DAUGHTREY, Circuit Judge. This Bivens1 action arose from the
    shooting death of the plaintiff’s decedent, Leon Dandredge, by the defendant, U.S. Deputy
    Marshal Mark Hessler. When the shooting occurred, Hessler and his partner were
    searching for Dandredge in the basement of a house in an attempt to arrest him pursuant
    to a warrant. The plaintiff filed suit, contending that Hessler used excessive force in
    violation of the Fourth Amendment and that Hessler was not entitled to qualified immunity.
    *
    The Hon. Richard Mills, United States District Judge for the Central District of Illinois, sitting by
    designation.
    1
    Bivens v. Six Unknown Nam ed Agents of Fed. Bureau of Narcotics, 
    405 U.S. 388
    (1971).
    05-2333
    Eggerson v. Hessler
    The district court granted summary judgment to the defendant, finding that there were no
    disputed issues of material fact and concluding as a matter of law that Dandredge’s Fourth
    Amendment rights were not violated. The court also noted that the defendant would have
    been entitled to qualified immunity in any event. Because we conclude that the district
    court correctly decided the issues of fact and law before it, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    Most of the facts leading up to the shooting were not disputed in the district court.
    The record developed there established that Hessler, assigned to the U.S. Marshal’s Office
    in Grand Rapids, Michigan, received information in June 2003 from the U.S. Marshal’s
    Office in Indianapolis that an arrest warrant had issued for Leon Dandredge based upon
    multiple parole violations and that Dandredge was believed to be in Muskegon, Michigan.
    In his effort to find and arrest Dandredge, Hessler received and read a file on the fugitive
    indicating, inter alia, that Dandredge had a history of arrests for assault and battery and
    that failure to attend court-ordered anger-management counseling was listed among his
    parole violations.
    Throughout that summer, Hessler investigated Dandredge’s whereabouts and made
    contact with multiple sources who confirmed that Dandredge was in the Muskegon area.
    It eventually became clear to Hessler that Dandredge knew he was being sought and was
    actively eluding arrest. At one point, Dandredge spoke over the phone with Detective Chad
    Nader, a local police detective who had become involved in the case because Dandredge
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    Eggerson v. Hessler
    was also being sought by the police in relation to alleged sexual criminal conduct in
    Michigan. Dandredge asked Nader whether the “feds” were looking for him, and Nader
    told him that the Marshals had an arrest warrant citing him for parole violations, to which
    Dandredge responded that he did not want to go back to jail. Although Dandredge assured
    Nader that he would turn himself in on a date certain, he did not do so. Nader conveyed
    the substance of this conversation to Hessler.
    On the day of the shooting, August 20, 2003, Hessler and his partner, Kenneth
    Groenveld, had received information that Dandredge might be hiding out with his girlfriend,
    Wanda Henderson, who resided in a house in Muskegon. Hessler and Groenveld went
    to that location to investigate. After an initial delay, Henderson answered the door and
    indicated in response to their inquiry that Dandredge was not there but, nonetheless,
    consented to the officers’ search of the premises. After searching the main living area, the
    officers asked whether Dandredge was in the basement of the house. Henderson replied,
    “I don’t know.” The officers then went to search the basement.
    As the officers descended the stairs together, Hessler indicated their presence by
    loudly announcing that they were United States Marshals and were there to serve an arrest
    warrant on Dandredge. Hessler also drew his weapon and kept it at his side. The
    basement was dimly lit and very cluttered. At the bottom of the steps, to the north, was a
    small laundry room. The room contained a washer and dryer and piles of clothing and
    other items. Groenveld took a step into the room and looked around, but he did not see
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    Eggerson v. Hessler
    Dandredge. The officers then proceeded to search through the remaining rooms of the
    basement, repeatedly announcing their presence as they went. Unable to find Dandredge,
    they began to head out of the basement, Groenveld in the lead and Hessler following. As
    Groenveld ascended the stairs, Hessler noticed an abnormally large pile of clothing in the
    laundry room and decided to investigate further.
    What happened next was the subject of disagreement between the parties.
    Hessler described the laundry room as small, measuring 11 feet 4 inches from the west
    to east walls and 6 feet 8 inches from the north to south walls, with an entrance on the
    south wall of the room that was 7 feet 6 inches from the west wall. He testified that after
    deciding to investigate the pile of laundry, he stepped into the laundry room and toward the
    northwest corner. At that point, he said, he reached for a blanket atop a large pile of
    clothes in order to ascertain whether Dandredge was hiding there and, without making a
    sound, Dandredge bolted upright, lunging upward at Hessler out of the pile of clothing.
    According to Hessler, Dandredge was almost on top of him, although not in actual contact,
    and it appeared to Hessler that Dandredge had ambushed him in an attempt to overpower
    him physically. Unsure whether Dandredge was armed, Hessler said that it crossed his
    mind that Dandredge might be trying to get control of his weapon, and he therefore fired
    one shot at Dandredge while stepping backward toward the doorway. Hessler later
    estimated that he was only one to two feet from Dandredge when he fired. The shot hit
    Dandredge in the head, wounding him fatally. All of this, Hessler said, occurred in an
    instant. Later, it was determined that Dandredge was unarmed at the time.
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    The plaintiff contended that the shooting could not have occurred the way Hessler
    described it. Her first claim was that because the laundry room was larger than Hessler
    testified, he must have been farther away from Dandredge than he said. This argument
    has been expressly abandoned on appeal. What is now at issue is the plaintiff’s second
    argument, which is based on what she contends is evidence establishing that Dandredge
    did not lunge at Hessler. That evidence is discussed in more detail below.
    After the plaintiff brought this action against Hessler and Groenveld, alleging
    excessive force in violation of the Fourth Amendment, both defendants filed motions for
    summary judgment. The district judge granted Groenveld’s summary judgment motion,
    and that decision is not before us. After allowing time for further discovery, the district
    judge granted summary judgment in Hessler’s favor also, finding that there were no
    disputed issues of material fact and that, as a matter of law, Dandredge’s Fourth
    Amendment rights had not been violated.
    DISCUSSION
    We review a district court’s grant of summary judgment de novo. See Michigan Bell
    Tel. Co. v. MFS Intelenet of Michigan, Inc., 
    339 F.3d 428
    , 433 (6th Cir. 2003). Summary
    judgment is appropriate where “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). We
    must view all evidence and any factual inferences in the light most favorable to the non-
    moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587-
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    Eggerson v. Hessler
    88 (1986). Once the moving party has sufficiently informed the court of the basis for its
    motion, the burden shifts to the non-moving party to demonstrate why summary judgment
    would be inappropriate, and the non-moving party must do more than simply show that
    there is some metaphysical doubt as to the material facts. See Fed. R. Civ. P. 56(e);
    
    Matsushita, 475 U.S. at 586
    . Rather, the plaintiff must come forward with affirmative
    evidence upon which a rational jury could find for the plaintiff. See Anderson v. Liberty
    Lobby, Inc., 
    477 U.S. 252
    , 256-57 (1986).
    Because it requires little analysis to conclude that if the incident occurred in the
    manner described by Hessler, there was no constitutional violation, the dispositive issue
    in this case is whether there are any genuine issues of material fact that contradict
    Hessler’s version of events. In the district court, the plaintiff relied on two pieces of
    evidence in an attempt to prove that Dandredge had not lunged at Hessler: (1) the affidavit
    of her expert, David Balash, stating that Dandredge “was not violently attacking Mark
    Hessler by bolting up toward him,” and (2) Groenveld’s deposition, in which, according to
    the plaintiff, Groenveld testified that Dandredge was sitting on his buttocks with his legs
    straight out in front of him immediately after he was shot, thereby negating Hessler’s
    assertion that he bolted upward at him. The plaintiff also argued that blood-spatter
    analysis setting the height of the bloodletting injury at 35 inches conflicted with Hessler’s
    deposition testimony regarding Dandredge’s position at the time of the shooting, thereby
    creating a question of whether Hessler was actually attacked.
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    The district court found that the Balash affidavit was entirely conclusory and
    therefore insufficient to defeat summary judgment, citing Williams v. Ford Motor Co., 
    187 F.3d 533
    , 543-44 (6th Cir. 1999). On appeal, the plaintiff again relies on the affidavit but
    fails to address the district court’s ruling, which we find was correct and which prevents
    reliance on this evidence to establish the proposition for which it was offered below. See
    United States v. Elder, 
    90 F.3d 1110
    , 1118 (6th Cir. 1996) (“[i]t is a settled appellate rule
    that issues adverted to in a perfunctory manner, unaccompanied by some effort at
    developed argumentation, are deemed waived.”) (internal quotation marks and citations
    omitted). A reading of the Balash affidavit shows that although Balash mechanically listed
    the facts he relied upon to make his conclusions, he did not reveal, even in a most basic
    sense, the “process of reasoning” or “inferential process” he relied on in making his
    conclusions. See 
    Williams, 187 F.3d at 544
    .
    The district court also rejected the plaintiff’s reading of Groenveld’s testimony, noting
    that despite counsel’s repeated attempts to get him to testify otherwise, Groenveld had
    unequivocally testified that he never saw Dandredge’s lower body because it was covered
    by clothing and that he could only speculate as to whether Dandredge was crouched or
    sitting on his buttocks. Hence, the only credible evidence regarding the position of
    Dandredge’s body came from a police report indicating that he was found in a crouched
    position. That evidence was completely consistent with Hessler’s version of events.
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    Eggerson v. Hessler
    With regard to the blood-spatter evidence, the plaintiff apparently argues that a
    bloodstain pattern analysis performed by a state forensic expert demonstrated that
    Dandredge was in the northwest corner of the room when shot, as evidenced by “a stain
    on the north wall approximately 15 inches from the west wall, 35 inches above the floor.”
    Arguing from a pathologist’s report that Dandredge was rendered immediately unconscious
    by the bullet to his head, the plaintiff now puts forward the following:
    Therefore, Plaintiff’s theory is that the forensic evidence shows that
    Dandredge’s head was near the corner between the wall and the side of the
    dryer between 24 and 36 inches from the floor where he was shot. From
    this, Plaintiff’s theory is that Dandredge was not lunging toward Hessler when
    Hessler shot him in the head.
    The problem, of course, is that the plaintiff’s conclusion is no more than theory and does
    not establish a factual basis for the proposition that plaintiff would have us adopt, i.e., that
    “the blood spatter evidence . . . makes clear a genuine dispute as to whether Dandredge
    was acting aggressively or was planning to give himself up” because it is “consistent with
    Plaintiff’s claim that Dandredge was either sitting or was nearly sitting on the floor when he
    was shot.” Obviously, these are mere conclusions, and the plaintiff fails to explain how
    the evidence of the height of the blood spatters conflicts with Hessler’s testimony or
    indicates that Dandredge was not lunging. Moreover, as the district court pointed out,
    “there [wa]s clear evidence that Dandredge was rising from his hiding place when he was
    shot, for his body was found only partially concealed in a squatting position.” In addition,
    the plaintiff’s theory that Dandredge might have intended to give himself up is belied by the
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    Eggerson v. Hessler
    fact that he never made a sound in response to the marshals’ repeated invitations that he
    do so.
    We conclude that the plaintiff has simply failed to show that there is a genuine issue
    of material fact as to how the shooting occurred or to refute that it happened just as
    Hessler testified. Viewing the facts in the light most favorable to the plaintiff, we must
    therefore assume that when Hessler neared Dandredge’s hiding space, Dandredge silently
    and forcefully bolted upward in a movement that could be perceived as an attack, and that
    Hessler, reasonably perceiving it as such, fired out of a concern for his own safety.
    In the absence of disputed facts concerning the shooting, the district court correctly
    proceeded to determine as a legal matter whether the use of force in this case was
    excessive, in violation of Dandredge’s rights under the Fourth Amendment. The court
    determined that there was no constitutional violation and, therefore, did not find it
    necessary to determine whether Hessler was entitled to qualified immunity.
    Claims of excessive force in the course of an arrest “should be analyzed under the
    Fourth Amendment and its ‘reasonableness’ standard.” See Sample v. Bailey, 
    409 F.3d 689
    , 696 (6th Cir. 2005) (quoting Graham v. Connor, 
    490 U.S. 386
    , 395 (1989)). Use of
    deadly force is constitutionally reasonable only if “the officer has probable cause to believe
    that the suspect poses a threat of serious physical harm, either to the officer or to others.”
    See 
    id. at 696-97
    (quoting Tennessee v. Garner, 
    471 U.S. 1
    , 11 (1985)).                   “The
    ‘reasonableness’ of a particular use of force must be judged from the perspective of a
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    reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 
    Id. at 697
    (quoting 
    Graham, 490 U.S. at 396
    ). Also, “the calculus of reasonableness must embody
    allowance for the fact that police officers are often forced to make split-second judgments
    – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of
    force that is necessary in a particular situation.” 
    Id. (quoting Graham,
    409 U.S. at 396-97).
    On the undisputed facts of this case, we conclude – as did the district court – that
    there is no genuine issue of material fact as to the reasonableness of Hessler’s perception
    that he was under threat of serious physical harm. Hessler knew that Dandredge had a
    history of arrests and one conviction for assault and battery. He knew that Dandredge was
    willing to go to some length to avoid arrest, given that he had been actively eluding arrest
    and had stated to Nader that he did not want to go back to jail. The room was small,
    cluttered, and dimly lit, and Dandredge was hiding and silent. Despite Wanda Henderson’s
    equivocation, Hessler had no way of knowing for sure that Dandredge was actually present
    in the basement. When Dandredge suddenly lunged at Hessler without warning, from
    Hessler’s point of view the situation had all the hallmarks of an ambush. Hessler was
    within two feet of him and did not know at that point whether Dandredge was armed. It was
    certainly reasonable for him to fear that Dandredge was near enough to him to physically
    overpower him and take his weapon. Significantly, these events happened with split-
    second rapidity, leaving little time for further investigation or reflection on Hessler’s part.
    Under these circumstances, we cannot say that the use of deadly force was unreasonable.
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    CONCLUSION
    For the reasons set out above, we AFFIRM the judgment of the district court.
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