Summerland v. Livingston , 240 F. App'x 70 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0624n.06
Filed: August 27, 2007
No. 06–1975
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DIANA SUMMERLAND, as Personal Rep. of )
the Estate of DWAINE RINESMITH, )
Deceased, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
COUNTY OF LIVINGSTON et al., )
Defendants-Appellees.
Before: KEITH, MOORE, and COLE, Circuit Judges.
KEITH, Circuit Judge. Plaintiff, Diana Summerland (personal representative of the estate
of Dwaine Rinesmith), appeals the district court’s grant of summary judgment on the basis of
qualified immunity in favor of Defendants (County of Livingston and several of its officers).
Because we find, inter alia, that the officers did not violate Rinesmith’s constitutional rights, we
AFFIRM the district court’s grant of qualified immunity.
I.
This case arises out of the shooting death of Dwaine Rinesmith, a mentally disturbed man.
At approximately 6:30 p.m. on October 5, 2002, Livingston County Sheriff Deputies Carl Smyth and
Raymond Marino each responded to a 911 call that a man placed a large sign in his front yard that
read “no police you be shot.” (JA 395.) Deputy Smyth initially refused to respond to the call because
“he did not think it was a police matter,” (JA 373), but Smyth’s commanding officer, Sergeant Fred
06-1975 Summerland v. County of Livingston et al. Page 2
Williams, informed him that there was a mentally disturbed individual living on the property where
the sign was located and that “they would need to go and check the status of the individual and find
out his mental condition, as well as what his intentions were.” (JA 373).
When Deputy Smyth and Deputy Marino each arrived at the scene, they encountered Dwaine
Rinesmith in the window of a mobile home located on the property with the sign. Marino asked
Rinesmith to exit his residence, but he refused. Deputy Smyth attempted to enter Rinesmith’s
property through a chained gate, but, as Smyth was unwinding the chain, Rinesmith began yelling
from his window for the officers to stay out of his yard. Smyth backed off as a result.
After Marino made phone contact with Rinesmith, Rinesmith started to complain about how
he was a Vietnam veteran and that “nobody appreciates him, [and] what he did for the country[.]”
(JA 99.) Rinesmith also spoke of an incident that purportedly occurred two weeks prior, in which
two Livingston County deputies had “beat[en] him up” in the process of transporting him to the
University of Michigan Hospital for psychiatric treatment. (JA 100.) (According to Deputy Marino,
Rinesmith claimed he received psychiatric treatment because “he wanted to die and he still want[ed]
to die.” (JA 99.)) Deputy Marino convinced Rinesmith to throw his psychiatrist’s business card
out of his window and to permit Marino onto the property to retrieve it. After Marino retrieved the
card, he passed it to Smyth, who then attempted to contact Rinesmith’s psychiatrist, while Marino
continued to speak with Rinesmith.
Around this time (approximately 6:50 p.m.), Livingston County Sheriff Deputy Curt Novara
arrived on the scene, positioning himself behind a bush in front of Rinesmith’s mobile home. About
a half hour later, Livingston County Sheriff Deputy Marc King arrived at Rinesmith’s
residence—whose presence profoundly agitated Rinesmith. (Apparently, Rinesmith thought that
06-1975 Summerland v. County of Livingston et al. Page 3
Deputy King was the deputy who had allegedly handcuffed him too tightly during his transportation
to the hospital two weeks earlier.) Upset, Rinesmith threw his cell phone out the window and
terminated communication with Deputy Marino. Rinesmith then moved away from the window,
causing Marino to lose sight of him.
According to Deputy Marino, Rinesmith returned to the window a short while later with an
object that appeared to be a gun. Deputy Marino took cover behind his patrol car—though Marino
does not say (nor does anyone else) that Rinesmith actually aimed the gun at anyone.1 (JA 104.)
One of Rinesmith’s neighbors, Robert A. Rodriguez, videotaped this, (JA 426) (DVD), and later
testified in his deposition that he saw what he believed to be the barrel of a rifle in Rinesmith’s
possession. Deputy Novara agreed with this perception: “From observing behind the pine trees[,]
I [saw] Mr. Rinesmith in the front of his mobile home holding an object horizontally[;] it appeared
to be in a tube-like manner, that resembled the barrel of a long gun.” (JA 159.)
Around 7:30 p.m., Rinesmith emerged from his mobile home and, according to Deputy
Novara, appeared to have a handgun in his left hand. Deputy Novara yelled, “Gun!” and Rinesmith
began to head north on his property—in the opposite direction of the deputies, who were positioned
on the south side of the property. Deputy King, who was positioned to the southwest of Rinesmith’s
property at the gate of a neighboring mobile home, spotted Rinesmith and announced his presence
by yelling “Livingston County Sheriff’s Department.” (JA 195.) Rinesmith responded by “turning
in [King’s] direction and [taking] up . . . a kneeling stance[.] . . . [I]t was a shooting position and [he]
1
In contrast, the district court wrote that “Rinesmith, while still at his front window,
pointed what appears to be a long-barreled rifle out the front window of his house in the direction
of the Livingston County Sheriff Deputies Marino and Smyth.” (Dist. Ct.’s Op. 4.) The district
court only cited to “Def.’s Ex. 5, Video Clip No. 1” in support of this proposition. But none of
the video clips that we received in the joint appendix supports this finding.
06-1975 Summerland v. County of Livingston et al. Page 4
pointed [something] in [King’s] direction.” (JA 195.) Deputy King later described the object as
“something that appeared to be black and then something either attached to the back of it or the front
of it that had a light. . . . It would be equated to a sight on a gun.” (JA 195.) One of Rinesmith’s
neighbors, Bernardine Cusumano, also testified that she believed that Rinesmith was holding a gun.
(JA 273–74.)
King then yelled for Rinesmith to “drop the object,” (JA 195), and Rinesmith responded by
yelling, “Shoot me, Shoot me[,]” (JA 195). Deputy King repeated his command, and, within a
matter of “three [to] five seconds,” Rinesmith “sat down and leaned against [a] shed [on the
property], with the unknown object [on] the ground.” (JA 195.) At this point, King “‘noticed that
[Rinesmith] had a small wooden handle shovel with a orange end next to him.’” (JA 196.) But, in
response to the question, “Is the object he was pointing at you the same object that you identify as
a shovel?,” King responded, “No.” (JA 196.) (Deputy King testified that he did not identify the
object that Rinesmith was pointing at him until after the day of the incident. (JA 196.))
Around this time, Deputy Smyth finally located Rinesmith’s psychiatrist, Dr. Lee Wang, and
tried to get Rinesmith to speak with Dr. Wang on the phone. Defendants contend that Rinesmith did
not respond to Deputy Smyth’s calls, choosing instead to quickly move toward the front portion of
his mobile home.2 At this point, Deputy Marino was positioned at the northeast corner of the shed,
and Deputy Novara was stationed at the southeast corner. When Rinesmith came closer to Deputy
Marino’s position, Marino moved around the shed toward a gas meter in front of Rinesmith’s mobile
2
Plaintiff contends that Rinesmith began walking toward the front of the yard in order to
“[r]espond[ ] to [Deputy Smyth’s] calls to talk to his doctor[.]” (Plaintiff’s Br. 10.) But, in spite
of Plaintiff’s citation, there is nothing in the record to support the notion that Rinesmith was
“[r]esponding to the calls to talk to his doctor[.]”
06-1975 Summerland v. County of Livingston et al. Page 5
home. Novara was now stationed five feet south and five feet east of Deputy Marino.
A witness, Patrick Gibson, testified in his deposition that he witnessed “[Rinesmith] running
around the corner of the shed toward the officers.” (JA 236.) According to Plaintiff, another witness,
David Grissom, testified that Deputy Smyth was chasing Rinesmith toward this direction.
(Appellant’s Br. 31; JA 388–389.) As Rinesmith ran toward Deputy Marino and Deputy Novara,
Gibson testified that “[Rinesmith] had his arms straight out in front of him as he was running. His
hands were together as if he were holding a gun.” (JA 236.) It appeared, according to Gibson, that
Rinesmith was going to “shoot the officers[.]” (JA 236.)
Deputy Marino and Deputy Novara tell a slightly different story. They testified in their
depositions that Rinesmith began charging them with “what appeared to be an axe in his right
hand[,]” not a gun. (JA 111; JA 174.) At this point, Deputy Marino yelled, “stop,”3 and “drop it,”
(JA 112; JA 174); and then fired two shots when Rinesmith failed to do so. Deputy Novara
simultaneously fired two more shots at Rinesmith, causing Rinesmith to twist and land on his
stomach. (JA 176.) Rinesmith was not given any verbal warning that deadly force would be used.
(JA 120.) Deputy King testified that he did not witness the shooting, (JA 197-98), but that he heard
the command “drop the weapon” and “3 to 4 gunshots,” (JA 199).
It was later determined that the distance between the gas meter in front of Rinesmith’s mobile
home (where Deputy Marino testified he shot from) and Rinesmith’s body was 23.8 feet. There was
18.5 feet between the shell casings from Deputy Marino’s gun and Rinesmith’s body, and 35 feet
between the shell casings from Deputy Novara’s gun and Rinesmith’s body.
3
Plaintiff contends that Rinesmith was actually the one to yell “stop” at the deputies, not
vice versa. However, as the district court noted, there is no evidence to support this proposition.
(Dist. Ct.’s Op. 12 n.2.)
06-1975 Summerland v. County of Livingston et al. Page 6
Immediately after the shooting, Deputy Marino and Deputy Novara testified that they
approached Rinesmith and moved three objects (a shovel, “a metal L-shaped bracket, and “a plastic
framing square”) away from Rinesmith. Although a witness (David Grissom) testified that he did
not recall seeing Rinesmith’s body moved, (JA 384-85), Marino and Novara testified that they turned
Rinesmith’s body over as he was “taking deep breaths[,]” (JA 176). EMS was called, but neither
Marino, Novara, nor King rendered first aid to Rinesmith. King later testified that he was trained
in treating gunshout wounds and that there was an emergency first aid kit in his police cruiser, but
he believed that it would not have been beneficial to attempt to treat Rinesmith’s wounds at that
point. (JA 203.) Shortly thereafter, Rinesmith died on the scene.
On October 5, 2004, Plaintiff (on behalf of Rinesmith’s estate) filed this 42 U.S.C. § 1983
action against Livingston County, Deputy Curt Novara, Deputy Marc King, and Deputy Raymond
Marino, alleging (1) “Fourth Amendment Violations Defendants Marino and Novara”; (2) “Gross
Negligence–Defendants King, Marino and Novara”; (3) “Danger Creation Defendant King”; (4)
“State Law Violations–Assault and Battery Defendants Marino and Novara”; and (5) “Constitutional
Violations–County of Livingston.” (JA 15–17.) Count III (“Danger Creation”) was later dismissed
by Plaintiff. (Dist. Ct.’s Op. 1 n.1.) She also sought to amend her Complaint to include two
additional claims: (1) a First Amendment retaliation claim and (2) a claim of deliberate indifference
to a serious medical condition. Defendants moved for summary judgment on the basis of qualified
immunity.
On June 19, 2006, the district court granted Defendants’ motion for summary judgment. The
court concluded that, “[u]nder the totality of circumstances, the deputies’ actions were reasonable[,]”
(Dist. Ct.’s Op. 12); and, therefore, they are entitled to qualified and governmental immunity. With
06-1975 Summerland v. County of Livingston et al. Page 7
respect to the County’s liability, the district court reasoned that “the need for more or different
training was not so obvious that the inadequacy was likely to result in the violation of constitutional
rights, such that the County can reasonably be said to have been deliberately indifferent to the need
for more training.” (Dist. Ct.’s Op. 15.) The court also denied Plaintiff’s request to amend the
Complaint to include a First Amendment retaliation and a deliberate indifference claim. Finally,
the court struck one of Plaintiff’s experts’ reports from the record, concluding that it contained
numerous “legal conclusions.” (Dist. Ct.’s Op. 17.) Plaintiff filed a timely Notice of Appeal.
II.
The Complaint alleges violations of § 1983 and state law, and therefore the district court had
subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law
claims under 28 U.S.C. § 1367. Because the district court’s grant of summary judgment in favor
of Defendants constitutes a “final judgment,” and because Plaintiff filed a timely Notice of Appeal,
this Court has jurisdiction to review the district court’s judgment under 28 U.S.C. § 1291.
III.
Our Court reviews a district court’s grant of summary judgment de novo. See Moore v.
Philip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party moving for summary judgment bears
the initial burden of showing that there is no genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party
must make a “showing sufficient to establish the existence of an element essential to that party’s
06-1975 Summerland v. County of Livingston et al. Page 8
case, and on which that party will bear the burden of proof at trial.” Id. at 322. The non-moving
party must present some evidence in support of its complaint to defeat a motion for summary
judgment, and show that a genuine issue for trial exists—i.e., that a reasonable jury could return a
verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Count I: Excessive Force Claim—Deputy Novara and Deputy Marino
With respect to Plaintiff’s excessive force claim, the first issue that we must address is
whether Defendants are entitled to qualified immunity.
1. Qualified Immunity Standard
“Qualified immunity provides ‘that government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Our Court has developed a three-step analysis for assessing
qualified immunity defenses: We determine (1) “whether, based upon the applicable law, the facts
viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred”;
(2) “whether the violation involved a clearly established constitutional right of which a reasonable
person would have known”; and (3) “whether the plaintiff has offered sufficient evidence to indicate
that what the official allegedly did was objectively unreasonable in light of the clearly established
constitutional rights.” Id. at 901. “If the answer to all three questions is ‘yes,’ qualified immunity
is not proper.” Id.
2. Application
Under the first step of the qualified immunity defense, “we consider whether the facts, when
06-1975 Summerland v. County of Livingston et al. Page 9
taken in the light most favorable to the plaintiff[ ], demonstrate the occurrence of a constitutional
violation.” Id. As noted, Plaintiff contends that Deputy Marino’s and Deputy Novara’s force against
Rinesmith was excessive. The Supreme Court has held that “all claims that law enforcement officers
have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard[.]” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). The parties do not
dispute that Rinesmith was “seized” at the time of the shooting, and, indeed, Fourth Amendment
jurisprudence supports this agreement. See Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“[T]here can
be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.”). Hence, the Fourth Amendment’s “reasonableness”
standard applies to the instant case.
That standard is an objective one, requiring the Court to perform “a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks
omitted). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The ultimate
question is “whether the totality of the circumstances justified a particular sort of search or seizure.”
Garner, 471 U.S. at 8–9.
With these considerations in mind, our prior cases have made clear that “the use of deadly
force is only constitutionally reasonable 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.” Sample v. Bailey, 409 F.3d
689, 697 (6th Cir. 2005) (internal quotation marks omitted). And thus the question becomes whether
06-1975 Summerland v. County of Livingston et al. Page 10
Rinesmith objectively posed a serious threat to the deputies or anyone else. Plaintiff contends that
Rinesmith did not; that he was simply running away from Deputy Smyth, who had chased Rinesmith
around the corner of the shed, when he was shot by Deputy Marino and Deputy Novara.
(Appellant’s Br. 31.) Deputy Smyth denies that he chased Rinesmith into Marino and Novara’s
direction. He contends that he was speaking with Dr. Wang in his vehicle until he heard shots fired.
(JA 141.)
To be sure, this is a disputed fact, but it is not material. Either way, it would be clear that
Rinesmith posed a serious threat to Marino and Novara. And though the witnesses’ perspective (that
Rinesmith was “going to shoot” the officers) differs from the officer’s perspective (that Rinesmith
was charging them with “an axe”), either scenario would give a reasonable officer probable cause
to believe that Rinesmith posed a “threat of serious physical harm.” There is no evidence to support
Plaintiff’s contention that “Rinesmith was unarmed and posed no threat to Defendants[.]”4
(Apellant’s Br. 33.) Therefore, even if Deputy Smyth was in fact chasing Rinesmith into the
4
Plaintiff makes some serious misrepresentations in her brief in an attempt to support her
position. For example, she contends that “[i]ndependent witness Gibson . . . reported that
Rinesmith had nothing in his hands and was not threatening the officers with an axe raised above
his head as he came around the shed where [the] Deputies . . . were hiding.” (Appellant’s Br.
31.) Plaintiff cites nothing to support this— and for good reason: Patrick Gibson testified in his
deposition that “‘[he] didn’t notice whether or not [Rinesmith] had a gun,’” (JA 236), but
“[Rinesmith’s] hands were together as if he were holding a gun [and] would shoot the officers[.]”
(JA 236.) Patrick Gibson’s wife, Dorithy Gibson, also reported a similar observation:
“[Rinesmith] came aroun[d] the shed and he was running, coming toward the officers, he had
what I believe to be a gun in his hand, the officers yelled at him to stop but he didn’t. It looked
to me that [Rinesmith] started to raise his hand with the gun so they shot him.” (JA 323.)
Plaintiff’s brief also states that “[i]ndependent witness Cusumano testified that Rinesmith
did not have his arm raised above his head threatening the officers with an axe.” (Appellant’s Br.
31.) Again, Plaintiff provides no supporting citation for this proposition, and a review of
Cusumano’s deposition actually reveals that she could not see Rinesmith’s hands at all: “Q: . . .
When [Rinesmith] was running around, you couldn’t see his hands, correct? A: Right.” (JA
281.)
06-1975 Summerland v. County of Livingston et al. Page 11
deputies’ direction (which the Court must assume for summary judgment purposes), there was
nevertheless probable cause to believe that Rinesmith posed a “serious physical threat” to Marino’s
and Novara’s safety as he fled from Deputy Smyth—thereby justifying deadly force.
Plaintiff points to several details to support her position. First, Plaintiff points to the distance
from which the deputies shot Rinesmith: Deputy Marino was approximately 23.8 feet from
Rinesmith; Deputy Novara was approximately 35 feet from Rinesmith. But, even still, the deputies
were faced with an aggressive individual who (1) posted a sign threatening, “no police you be shot,”
(2) had earlier brandished an object that appeared to be a shotgun, and (3) had begun charging toward
the deputies’ direction, which not only minimizes the significance of the 23.8 feet distance between
Deputy Marino and Rinesmith but forced the deputies to make a “split-second judgment.” See
Sample, 409 F.3d at 697 (“[T]he 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.”). And the deputies faced all this in the dark.5
Second, Plaintiff contends that “Defendants did not have probable cause to arrest Rinesmith
for any crime.” (Appellant’s Br. 33.) Yet it is unclear why this matters: Even if the deputies had no
justifiable reason “to arrest Rinesmith for any crime,” this would not have given Rinesmith a free
pass to threaten the deputies with “serious physical harm.” See Boyd v. Baeppler, 215 F.3d 594, 600
(6th Cir. 2000) (“[Whether plaintiff committed a crime] is wholly immaterial to the issue of whether
[he] presented a threat to [the] officers[.]”).
5
It is true that Deputy Novara was farther from Rinesmith than Deputy Marino was. But
his two shots were justified to protect Deputy Marino’s safety, if not to protect his own.
06-1975 Summerland v. County of Livingston et al. Page 12
Next, quoting Champion, 380 F.3d at 904, Plaintiff correctly points out that “[t]he diminished
capacity of an unarmed detainee must be taken into account when assessing the amount of force
exerted.” (Appellant’s Br. 26) (internal quotation marks omitted); see also Deorle v. Rutherford, 272
F.3d 1272, 1283 (9th Cir. 2001)(“[W]here it is or should be apparent to the officers that the
individual involved is emotionally disturbed, that is a factor that must be considered in determining
. . . the reasonableness of the force employed.”). Notably, however, these cases involved mentally
disturbed individuals who were unarmed. Rinesmith, by contrast, was armed with (and aiming) what
the deputies perceived to be an axe and witnesses perceived as a gun. And, unfortunately,
Rinesmith’s diminished capacity did not make him any less of a serious threat to the deputies in light
of these other circumstances. See, e.g., Untalan v. City of Lorain, 430 F.3d 312, 315 (6th Cir. 2005)
(extending qualified immunity to officer who shot a mentally disturbed individual who, “[a]rmed
with a butcher knife, . . . suddenly burst out of the kitchen and lunged at [an] Officer[.]”).
Finally, Plaintiff points out that “[Rinesmith] was shot without warning that deadly force
would be used. He was shot immediately after Defendants yelled ‘stop’ and given no time to
comply.” (Appellant’s Br. 33.) Plaintiff gives no supporting factual or legal citation for these
propositions. And our review of the evidence does not show that Rinesmith was not given a
reasonable “time to comply” under the circumstances. Rather, the evidence shows that Rinesmith
was charging directly at Marino and Novara, and that they yelled “stop” and “drop the weapon” with
their guns pointed in his direction— thereby giving Rinesmith a definite (though not verbal) warning
of the probable result. See Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991) (extending
qualified immunity despite the fact that the deputies gave no warning of deadly force, only “several
warnings to halt[.]”).
06-1975 Summerland v. County of Livingston et al. Page 13
Accordingly, because the facts viewed in a light most favorable to Plaintiff show that
Rinesmith posed a “threat of serious physical harm,” there was no “unreasonable seizure” under the
Fourth Amendment—and thus no “constitutional violation” under the first inquiry of the qualified
immunity standard. The Supreme Court has held that “[i]f no constitutional right would have been
violated were the allegations established, there is no necessity for further inquiries concerning
qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Hence, the Court need not proceed
to the second inquiry—“whether the violation involved a clearly established constitutional right of
which a reasonable person would have known”— under the qualified immunity standard.6
Count II: Gross Negligence Claim — Deputies Marino, Novara and King
Plaintiff argues that “the facts of this case are sufficient to allow a reasonable jury to infer
that Defendant Marino and Novara’s actions constituted gross negligence [under Michigan law, and
that] Defendant King’s failure to notify the other deputies that Rinesmith was unarmed is clearly
reckless in light of the circumstances present that evening.” (Appellant’s Br. 40.) Defendants assert
governmental immunity under Michigan law, which provides that governmental officials, acting in
the scope of their employment, are immune from tort liability unless the official’s conduct
6
In any event, it is reasonably clear that, had the deputies violated Rinesmith’s
constitutional rights because they should have waited until Rinesmith moved closer than 23 feet,
the law is not (and was not) “clearly established” on this point. See Untalan v. City of Lorain,
430 F.3d 312, 315 (6th Cir. 2005) (“Within a few seconds of reasonably perceiving a sufficient
danger, officers may use deadly force even if in hindsight the facts show that the persons
threatened could have escaped unharmed.”); cf. DeMerrell v. City of Cheboygan, 206 F. App’x
418, 429 (6th Cir. 2006) (unpublished) (extending qualified immunity where defendant-officer
shot a gun-toting suspect from “25-30 feet”). And, “[t]he qualified immunity standard ‘gives
ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent and those
who knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citation omitted).
06-1975 Summerland v. County of Livingston et al. Page 14
“amount[s] to gross negligence that is the proximate cause of the injury[.]” Mich. Comp. Laws Ann.
§ 691.1407(2)(c) (West 2000).
As concluded, even when viewing the facts in a light most favorable to Plaintiff, Marino’s
and Novara’s shots were not objectively unreasonable. It follows a fortiori that they did not commit
“gross negligence,” and thus are entitled to governmental immunity (since they were acting within
the scope of their authority). Id. § 691.1407(2).
There is likewise no genuine issue of material fact as to whether Deputy King was grossly
negligent for “fail[ing] to notify the other deputies that Rinesmith was unarmed[,]” (Appellant’s Br.
40), for there is no evidence that Deputy King knew this to be true. In fact, Deputy King testified
that Rinesmith had earlier pointed “something that appeared to be black” with a small light “equated
to a sight on a gun” in his direction, (JA 195), and that he was unable to observe Rinesmith’s
conduct immediately prior to the shooting. (JA 198). Hence, assuming that this allegation would
even amount to “gross” negligence (as opposed to ordinary negligence), Plaintiff has not made a
“showing sufficient to establish the existence of an element essential to [her] case, and on which
[she] will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. For this reason, Deputy
King is also entitled to governmental immunity.
Count IV: Assault and Battery Claim
In Count IV, Plaintiff contends that “Defendants [Marino and Novara] intended to cause a
harmful and/or offensive conduct[.]” (Compl. ¶ 72.) In support of this allegation, Plaintiff argues,
in full, “[a]s previously set forth . . . , Defendants did not use reasonable force when they shot an
unarmed, mentally ill man, in his own backyard, who was not a threat of serious bodily harm or
06-1975 Summerland v. County of Livingston et al. Page 15
death.” (Appellant’s Br. 40.) Insofar as Plaintiff solely relies on arguments that have already been
rejected, Count IV should likewise be rejected. See also Brewer v. Perrin, 349 N.W.2d 198, 202
(Mich. App. 1984) (“Government actions which would normally constitute intentional torts are
protected by governmental immunity if those actions are justified.”).
Count V: Inadequate Training— Livingston County
Next, Plaintiff argues in Count V that Livingston County provided inadequate training to the
deputies in apprehending mentally disturbed individuals. (Compl. ¶ 77.) “[T]he inadequacy of
police training may serve as the basis for § 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into contact.” City of
Canton v. Harris, 489 U.S. 378, 388 (1989). “In resolving the issue of a city’s liability, the focus
must be on [the] adequacy of the training program in relation to the tasks the particular officers must
perform.” Id. at 390.
Plaintiff’s claim fails for two reasons: First, for the reasons explained above, Plaintiff has
not established that the deputies committed a constitutional violation. And, “[i]f no constitutional
violation by the individual defendants is established, [a] municipal[ity] cannot be held liable under
§ 1983.” See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2002). Second (and
notwithstanding), Plaintiff has not identified in which ways the County inadequately trained the
deputies—other than to say that “Defendants testified that they did not receive any training in
apprehending mentally ill persons,” (Appellant’s Br. 39), an assertion that fudges the deputies’
testimonies, (JA 151; JA 92).
Moreover, whether these particular deputies received adequate training is only part of our
06-1975 Summerland v. County of Livingston et al. Page 16
inquiry: “In resolving the issue of a city’s liability, the focus must be on [the] adequacy of the
training program[,]” Harris, 489 U.S. at 390, in order to show (1) that it is inadequate; (2) that the
inadequacy is the result of deliberate indifference; and (3) that the inadequacy is “closely related to
or actually caused the plaintiff’s injury.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).
Plaintiff has not attempted to meet any of these requirements and, therefore, has “fail[ed] to make
a showing sufficient to establish the existence of an element essential to [her] case, and on which
[she] will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 323. Summary judgment
in the County’s favor was proper.
IV.
Amendments to Complaint
Plaintiff also appeals the district court’s denial of her request to amend the Complaint to add
(1) a First Amendment retaliation claim (arguing that the officers killed Rinesmith in retaliation of
the sign in his front yard), and (2) a deliberate indifference claim (arguing the deputies were
deliberately indifferent to Rinesmith’s serious medical needs).
Federal Rule of Civil Procedure 15(a) provides, in relevant part, that “[a] party may amend
the party’s pleading only by leave of court . . . and leave shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). “[C]ourts should consider undue delay in filing, lack of notice to
the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and futility of amendment.” Brumbalough v.
Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir. 2005). A district court’s decision to deny
a request for amendment is reviewed for abuse of discretion. Id. But, “when the district court bases
such a denial on the fact that the amendment would be futile, [this Court] review[s] the decision de
06-1975 Summerland v. County of Livingston et al. Page 17
novo.” Id.
A. Retaliation Claim
With respect to the retaliation claim, the district court concluded that “[t]here is absolutely
no evidence that Rinesmith was shot because he posted [the] sign in his front yard[,]” and
“[a]llowing leave to amend to file a First Amendment retaliation claim would be futile.” (Dist. Ct.’s
Op. 17.) The district court is correct. Other than a single conclusionary and unsubstantiated remark,
(Appellant’s Br. 44), Plaintiff has not offered a scintilla of evidence that the deputies shot Rinesmith
in retaliation of the sign in his front yard. Therefore, an amendment on this claim would indeed be
futile.
B. Deliberate Indifference Claim
Neither has the district court abused its discretion in denying Plaintiff’s request to include
the deliberate indifference claim. As the district court noted, “the timing of the request for leave to
amend, which occurred in response to a motion for summary judgment, and after discovery has been
closed for months, [amounts to] undue delay, and [would be] prejudicial to the other side.” (Dist.
Ct.’s Op. 17.) See Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (noting that
“[a]llowing amendment at this late stage in the litigation would create significant prejudice to the
defendants in having to reopen discovery and prepare a [new] defense[.]”). Moreover, as in
Duggin, Plaintiff was “obviously aware of the basis of the [deliberate indifference] claim[,]” and
offers no justification for the extended delay. Duggins, 195 F.3d at 834.
V.
Expert Report
06-1975 Summerland v. County of Livingston et al. Page 18
Finally, Plaintiff challenges the district court’s decision to strike the report of one of her
experts, Dr. Clinton Donaldson. (Dist. Ct.’s Op. 17.) In a hearing on April 26, 2006, the district
court reasoned that “the [report] . . . determines or opines that reasonable force was not used. I think
that it is inappropriate . . . to have this expert’s interpretation of what went on. So I’m not going to
allow it at this point.” (Summ. J. Hr’g Tr. 25, April 26, 2006.) Plaintiff concedes that paragraphs
38 and 44 in Donaldson’s report contain improper legal conclusions,7 see Berry v. City of Detroit,
25 F.3d 1342, 1353 (6th Cir. 1994), but she argues that “the District Court should have struck only
those two paragraphs containing legal conclusions and considered the remainder of Dr. Donaldson’s
report.” (Appellant’s Br. 43.)
Because we are affirming the district court’s dismissal of this matter, this issue is moot, and,
thus, we need not decide it. In any event, a review of the report shows that, in addition to
paragraphs 38 and 44, the report is riddled with legal conclusions. (Donaldson’s Aff. 9–11.) For
example, in paragraph 36, Donaldson states, “[i]t is my opinion that there was no reasonable cause
for the officers to enter upon the private property of Rhinesmith [sic] who was exercising his First
Amendment rights by his posting.” (Donaldson’s Aff. 9.) Paragraph 49 states, in part: “It is
unlawful to shoot an unarmed, mentally ill man, running away from danger, on his property, who
had not committed a crime.” (Donaldson’s Aff. 10.) Paragraph 51 opines: “[T]he Livingston
County Sheriff Department willfully, intentionally and recklessly created an extremely
7
Paragraph 38 provides: “It is my opinion that Officer King was grossly negligent and
overtly reckless in not broadcasting to the other Defendants that Rhinesmith [sic] was unarmed.”
(Donaldson’s Aff. 9.)
Paragraph 44 provides: “It is my opinion that Deputy King was deliberately indifferent by
willfully refusing to broadcast that Rhinesmith [sic] was carrying a small shovel which he had
abandoned.” (Donaldson’s Aff. 10.)
06-1975 Summerland v. County of Livingston et al. Page 19
dangerous/fatal situation by dispatching unsupervised and untrained deputies to the scene of an
incident that the on duty supervisor expressed reservation about the deputies [sic] ability to handle
such a potentially dangerous situation.” (Donaldson’s Aff. 11.) And there are many more instances
of this sort.
Therefore, because experts may only “state[ ] opinions that suggest the answer to the
ultimate issue or that give the jury all the information from which it can draw inferences as to the
ultimate issue[,]” Berry, 25 F.3d at 1353, and because Donaldson’s report goes beyond this point
(many times over), the district court’s decision to strike his entire report was not erroneous.
VI.
For the reasons stated, the Court AFFIRMS the district court’s grant of summary judgment
in favor of Defendants; AFFIRMS the district court’s denial of Plaintiff’s requests to amend her
complaint; and AFFIRMS the district court’s striking of the expert report.