Katrina McGrew v. Sergeant Duncan ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0225p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KATRINA MCGREW, ┐
Plaintiff-Appellee, │
│
> No. 18-2022
v. │
│
│
SERGEANT DUNCAN, et al., │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:16-cv-10978—Denise Page Hood, Chief District Judge.
Argued: May 1, 2019
Decided and Filed: September 4, 2019
Before: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan,
for Appellants. Solomon M. Radner, EXCOLO LAW, PLLC, Southfield, Michigan, for
Appellee. ON BRIEF: Linda D. Fegins, CITY OF DETROIT LAW DEPARTMENT, Detroit,
Michigan, for Appellants. Solomon M. Radner, Rebeca Martinez Sicari, EXCOLO LAW,
PLLC, Southfield, Michigan, for Appellee.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
A group of masked City of Detroit police officers broke down plaintiff Katrina
McGrew’s door, threw her to the ground, and handcuffed her so tightly it left bruises. When she
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complained about how constricting the handcuffs were, the officers threatened her life. She sued
the officers pursuant to 42 U.S.C. § 1983 and Michigan law. They now appeal the district
court’s denial of their motions for summary judgment based upon qualified immunity and
governmental immunity. We affirm, dismiss the appeal in part for lack of jurisdiction, and
remand for further proceedings consistent with this opinion.
I.
On the eve of Thanksgiving in 2014, Katrina McGrew was busy preparing the next
evening’s dinner when the Detroit Police Department executed a search warrant on her home.
As she stood in her kitchen stirring macaroni, she heard a bang at the front door. When she went
to investigate, she saw defendants, a group of Detroit Police Officers, standing in her living
room. They were wearing all black. Masks concealed their faces. She could see only their eyes.
One of the officers threw her to the ground, put his knee in her back and handcuffed her.
The handcuffs were tight, and McGrew so advised the officer. He responded: “[S]hut up, b----,
you shouldn’t be so fat.” When she complained to the same officer a second time, he responded:
“[I]f you don’t shut your f---ing mouth I can blow your head off and nothing can be done.”
The police seized a bag of marijuana and a pistol, which they documented on the search-
warrant return. They also allegedly seized, but did not mention, another gun, a pair of diamond
earrings, a Samsung Galaxy S4 tablet, and a new-in-the-box Samsung Galaxy S5 phone. No
records show these seizures or return of the property.
A few days later, McGrew went to the hospital for injuries she sustained during the raid.
She was diagnosed with musculoskeletal strain in her chest and ecchymosis (bruising) on her
right wrist.
McGrew sued the officers and the Detroit Police Department, asserting constitutional
claims of excessive force and deliberate indifference as well as various state-law claims.
Defendants moved for summary judgment on all claims, arguing that they were entitled to
qualified immunity on the § 1983 claim and governmental immunity on the state-law claims.
The district court denied qualified immunity, governmental immunity, and summary judgment
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on McGrew’s § 1983 excessive-force claim and state-law claims for assault, battery, and
conversion. The district court, however, granted summary judgment in favor of the Detroit
Police Department and in favor of the officers on plaintiff’s claim for intentional infliction of
emotional distress.
The defendant officers now appeal; plaintiff McGrew does not cross-appeal.
II.
We begin with McGrew’s § 1983 excessive-force claim and the officers’ contention that
they are entitled to qualified immunity. Qualified immunity shields the officers from suit if
(1) they did not violate any of McGrew’s constitutional rights or (2) the violated rights, if any,
were not “clearly established” when they acted. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
One variant of McGrew’s claim stems from how tightly the officers handcuffed her. To
succeed on it, she must prove that she complained about the tightness of the handcuffs, the
officers ignored her complaint, and the handcuffs caused a physical injury. Morrison v. Bd. of
Trs., 583 F.3d 394, 401 (6th Cir. 2009). The officers do not dispute that McGrew complained
and that they did not loosen the handcuffs. So whether they are entitled to qualified immunity
turns on whether McGrew suffered an injury and whether the right she claims they violated was
clearly established when they acted.
On these two points, the officers present essentially the same argument: bruising is not
enough. They contend that “[h]andcuffing that results in bruising does not violate any clearly
established constitutional right” and “[t]here was no manifest evidence of a clear physical
injury.” This argument is without merit. In Morrison, we held that “allegations of bruising and
wrist marks create a genuine issue of material fact” on whether a plaintiff has suffered a physical
injury. 583 F.3d at 403. Thus, under Morrison, bruising is enough. That means McGrew has
created a genuine issue of material fact regarding whether the officers violated her right to be
free from excessively tight handcuffing that causes physical injury. Further, because we decided
Morrison before the events in this case, McGrew’s right was clearly established at the time
defendants acted. Thus, the officers are not entitled to qualified immunity on this variant of
McGrew’s excessive-force claim.
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McGrew raises another excessive-force claim—one arising from an officer allegedly
throwing her to the ground to handcuff her. Although she asserts this claim in her complaint,
and argued it in opposition to the officers’ motion for summary-judgment, the district court did
not rule on whether the officers are entitled to qualified immunity on it. Under these
circumstances, we deem it prudent to direct the district court to address the issue on remand.
Finally, we note a third variant of McGrew’s excessive-force claim—one she raises for
the first time on appeal. Despite her complaint’s silence on the topic, McGrew argues in her
appellate brief that the officers had no reason to handcuff her and that doing so itself amounted
to excessive force. But an amended complaint, not an appellate brief, is the vehicle with which
to add new claims. See Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328–29 (6th Cir.
2006). If McGrew wishes to pursue this claim, she should move in the district court to amend
her complaint.
III.
Next, we turn to McGrew’s state-law claims, on which the officers assert they are entitled
to governmental immunity. Just as qualified immunity protects officials from federal claims,
Michigan’s governmental immunity shields officials from state claims if (1) the officials acted
during the course of their employment and were, or reasonably believed they were, within the
scope of their authority; (2) they acted in good faith; and (3) their acts were discretionary instead
of ministerial. Odom v. Wayne Cty., 760 N.W.2d 217, 224–26 (Mich. 2008).
Here, McGrew brought a handful of state claims arising from different harms. Her
assault claim, for example, flows from the officers allegedly throwing her to the ground. Her
battery claim stems from both the throw to the ground and the allegedly tight handcuffs. And her
conversion claim comes from the officers allegedly taking two pistols, diamond earrings, a
tablet, and a phone.
The officers contend that they are immune from these claims, but discuss only the
handcuffing variant of the battery claim. By not contending that governmental immunity shields
them from the other battery claim, the assault claim, and the conversion claim, the officers have
abandoned such arguments. “A party may not present a skeletal argument, leaving the court to
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put flesh on its bones.” Ruffin v. Cuyahoga Cty., 708 F. App’x 276, 278 (6th Cir. 2018) (citing
United States v. Hendrickson, 822 F.3d 812, 829 n.10 (6th Cir. 2016)). And here the officers
have not presented any argument at all—much less a skeletal one.
That leaves the tight-handcuffing variant of McGrew’s battery claim. Governmental
immunity does not protect the officers from this claim because McGrew has produced evidence
suggesting that the officer who handcuffed her tightened the handcuffs in bad faith. She testified
that when she complained twice about the handcuffs’ tightness, the officer said “shut up, b----,
you shouldn’t be so fat” and “if you don’t shut your f---ing mouth I can blow your head off and
nothing can be done.” Under these facts, it is difficult for us to imagine a clearer example of bad
faith.
IV.
Finally, we note that defendant officers’ other arguments are ones we lack jurisdiction to
consider.
Jurisdiction on McGrew’s Federal Claim. In interlocutory appeals, defendants “may not
appeal a district court’s summary[-]judgment order insofar as that order determines whether or
not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S.
304, 319–20 (1995). Thus, we may examine only purely legal questions. Gregory v. City of
Louisville, 444 F.3d 725, 742 (6th Cir. 2006). Yet the officers ask us to reweigh the facts. They
assert qualified immunity on McGrew’s § 1983 excessive-force claim primarily on the basis that
she is unable to positively identify the defendant who handcuffed her. She testified that the
officer was a “light-skin[ned] black guy” about six feet two inches tall. The officers emphasize
that none of them match that exact description.
The legal question here is one we have answered before: If officers actively conceal their
identities by wearing masks, and if that concealment prevents a plaintiff from identifying which
officer violated her rights, she may get to a jury if she can create genuine factual issues regarding
the officers’ presence at the scene. See Burley v. Gagacki, 729 F.3d 610, 622 (6th Cir. 2013); see
also Greer v. City of Highland Park, 884 F.3d 310, 316 (6th Cir. 2018). And on this record, the
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trier of fact may decide liability because the officers actively concealed their identities by
wearing masks, and none disputes his presence at the scene.
But the officers do not ask us to apply a different legal standard. Rather, they ask us to
quibble with the district court’s factual findings. When they raised their argument below, the
district court ruled that the evidence, viewed in the light most favorable to McGrew, created a
genuine issue of material fact regarding the identity of the officer who handcuffed her. In doing
so, the court refused to dismiss specific officers because it would require speculation as to what
McGrew meant by “light skinned.” Instead of accepting the district court’s conclusion, though,
the officers provide pictures of their faces—unmasked, of course—and argue repeatedly that
each officer “cannot reasonably be found to fit the description of a 6’2” light-skinned black
man.” In other words, the officers ask us to go outside the record to make factual findings the
district court never made—findings the court specifically declined to make given the uncertainty
it saw in the record. (Indeed, that uncertainty stems from defense counsel’s failure to ask
McGrew how she could tell that the officer who handcuffed her was “light skinned” or what she
meant by that description. McGrew also testified that she could see only the officers’ eyes, and
the record contains no other information on how much of each officer’s face the masks
concealed.) We therefore lack jurisdiction to consider this argument.
Jurisdiction on McGrew’s State Claims. In a federal-question action involving pendent
state claims, we look to state immunity law to determine whether a denial of state-law immunity
is appealable. See Walton v. City of Southfield, 995 F.2d 1331, 1343 (6th Cir. 1993), superseded
by court rule on other grounds as recognized in Livermore v. Lubelan, 476 F.3d 397, 407–08
(6th Cir. 2007). And when it comes to Michigan law, we have held that, because the denial of
governmental immunity is a “final order” that provides defendants with an appeal of right to the
Michigan Court of Appeals, we have jurisdiction over interlocutory appeals involving pendent
state-law claims of governmental immunity. See Livermore, 476 F.3d at 407–08.
But the same is not true for appeals of ordinary summary-judgment denials. Instead, the
doctrine of pendent appellate jurisdiction allows us, in our discretion, “to exercise jurisdiction
over issues that are not independently appealable when those issues are ‘inextricably
intertwined’” with issues we have jurisdiction to consider. Chambers v. Ohio Dep’t of Human
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Servs., 145 F.3d 793, 797 (6th Cir. 1998) To be so intertwined, a claim must be “coterminous
with” or “subsumed in” a claim within our jurisdiction. Id. Put differently, we must be unable to
resolve the properly appealable issue without addressing the nonappealable one. Id.
Here, the officers’ governmental-immunity arguments do not subsume their generic-
summary-judgment ones, and the two categories of arguments do not share the same boundaries
that coterminous ones would. Governmental immunity hinges on how the officers acted—the
scope of their actions, the attitude with which they took them, and the leeway they had to so act,
see Odom, 760 N.W.2d at 224–26 (discussing the elements of governmental immunity for
intentional torts), while the officers’ summary-judgment arguments turn on what they did. They
contend that “there is no evidence to show that any particular individual officer battered or
assaulted plaintiff” and that “[t]here certainly is no evidence to show that any individual officer
personally exerted any act of dominion over [McGrew’s] personal property or converted any of
her property.” Indeed, in the headings for their arguments, they state that they are “entitled to
summary judgment for want of a genuine issue of material fact.” Because we can resolve the
governmental-immunity issues without resolving summary-judgment ones, we lack jurisdiction
to consider the latter.
V.
For these reasons, we affirm the denial of qualified immunity and governmental
immunity, dismiss in part the officers’ appeal for lack of jurisdiction, and we remand for the
district court to consider the variant of McGrew’s excessive-force claim stemming from an
officer throwing her to the ground and for further proceedings consistent with this opinion.