                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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).
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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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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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Eggerson v. Hessler

       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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