                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0626n.06

                                          No. 14-1178
                                                                                      FILED
                                                                                Sep 08, 2015
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

MARY JANE GROSS and TERRY GROSS,                )
                                                )
       Plaintiffs-Appellants,                   )
                                                )
v.                                              )
                                                     ON APPEAL FROM THE UNITED
                                                )
                                                     STATES DISTRICT COURT FOR THE
CITY OF DEARBORN HEIGHTS et al.,                )
                                                     EASTERN DISTRICT OF MICHIGAN
                                                )
       Defendants-Appellees.                    )
                                                )
                                                )



BEFORE:        DAUGHTREY, ROGERS, and DONALD, Circuit Judges.



       MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal, we are asked by the

plaintiffs, Mary Gross and her husband, Terry Gross, to reverse the district court’s grant of

summary judgment to the defendants: Officer Nicholas Szopko, Corporal Christopher Pellerito,

Officer Michael Fraser, and Sergeant Joanne Beedle-Peer—all members of the Dearborn Heights

Police Department—and the City of Dearborn Heights. The Grosses’ § 1983 complaint charged

the officers with failure to “knock and announce” on entry to their residence and with use of

excessive force during Mary Gross’s arrest, both in violation of the Fourth Amendment; with

unconstitutional retaliation in violation of the First Amendment; and with deliberate indifference

to Mary Gross’s serious medical needs in violation of the Fourteenth Amendment. They also
No. 14-1178
Gross v. City of Dearborn

claimed that the City was liable based on its “custom, policy and practices,” failure to train, and

failure to provide medical treatment for Mary Gross’s objectively serious injury.

       In granting summary judgment to the individual defendants, the district court determined

that no genuine dispute of material fact existed as to any of the Grosses’ claims against the

officers, that the officers had not engaged in any constitutional violations, and that the officers

were therefore entitled to qualified immunity. After determining that the individual officers were

not liable, the court also granted summary judgment to the City. Because we conclude, to the

contrary, that there were genuine disputes of material fact as to at least some of the plaintiffs’

claims, we find it necessary to reverse the grant of summary judgment and remand for further

proceedings.

                         FACTUAL AND PROCEDURAL BACKGROUND

       There is no real disagreement as to the preliminary facts in this case. The complaint

stems from an incident in August 2012, when Dearborn Heights police officers Officer Nicholas

Szopko, Corporal Christopher Pellerito, and Sergeant Joanne Beedle-Peer arrived at the

residence of Mary Gross to execute a warrant for her arrest. The warrant, issued by the State of

Kentucky, sought her extradition for felony drug-trafficking, even though she was 66 years old at

the time and a Michigan resident with no prior arrest history. Dearborn Heights officers had

previously attempted to execute the same extradition warrant five months earlier, in March 2012.

On that occasion, Mary Gross informed the officers that they were pursuing a case of mistaken

identity, that her sister Margaret had used Mary’s name to open numerous credit cards in

Kentucky, and that the warrant should be for Margaret, not Mary. The officers lacked a mug

shot or fingerprints for the person identified in the Kentucky warrant and thus were unable to

verify that the warrant was actually for Mary Gross; as a result, they did not arrest her in March.


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       What is disputed concerns events that occurred when officers returned to the Grosses’

residence in August, after receiving another Kentucky extradition warrant in the name of Mary

Gross. Included with the warrant were a photograph of Mary Gross and a letter confirming that

she was the individual wanted by Kentucky. According to the Grosses, the officers gained entry

to the house illegally by misrepresenting their purpose, telling Terry Gross at his back door that a

neighbor had called and asked the police department to make a welfare check at his house. An

audiotaped recording of the encounter reflects that Officer Szopko, standing outside the door,

asked the Grosses to identify themselves. Mary Gross provided her name, but when Officer

Szopko told her to come out of the house, she refused.

       Because Mary Gross failed to follow Officer Szopko’s order, he and the other officers

decided to enter the house. From this point on, the parties offer differing accounts as to how the

defendants gained entry and what followed once they were inside the kitchen. Terry Gross

testified that an officer told him that if he did not open the door, they would “break it down”; that

after he unlatched the door, an officer “pulled the door open”; that this officer walked Terry

Gross into the kitchen and instructed him to sit down; and that another officer then ran into the

house, grabbed Mary’s arm and “started pulling on it.” He conceded that the officers had

knocked on his back door but denied that they had mentioned the arrest warrant until after they

entered the kitchen. Officer Szopko testified to a different version of the facts, saying that during

his initial conversation with Terry Gross, the back door was propped open; that he spoke with

Terry Gross from the threshold of the open door; that he grabbed onto Mary Gross’s arm, which

was within his reach from the threshold, after advising her of the warrant for her arrest; that

Mary Gross pulled her arm out of his grip and, thus, “resisted arrest”; and that he went into the

house to get hold of her again. Corporal Pellerito testified that he and Officer Szopko entered the


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Gross v. City of Dearborn

Grosses’ home because, after informing Mary Gross of the warrant for her arrest, she retreated

inside the kitchen and declined to come outside.

       What happened next is also unclear. Officer Szopko’s audiotape recording reflects that

after Mary Gross refused to come out of the house, a commotion ensued inside the house. The

following was recorded after the initial commotion:

              Mary: I didn’t do nothing, I didn’t do nothing.

              Officer: Come here, Mary, come on out.

              Officer: Have a seat, have a seat, have a seat.

              Officer: Mary, we have a warrant for your arrest.

              Mary: What for? Let me go.

              Officer: There’s a warrant for your arrest. There’s a warrant for your arrest.

              Mary: Can I get my clothes on first? Please?

              Terry: Let her get some clothes on.

              Officer: We’ll grab the clothes.

              Terry: Let her go in there and put some clothes on.

              Officer: Miss, Miss, stop.

              Officer: She don’t need no clothes.

              Mary: Oh, God. [second commotion]

              Officer: Don’t resist.

              Officer: Do not resist.

              Mary: You broke my leg. God, oh, oh, oh.

              Officer: Don’t resist.




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       The parties also provided versions of the arrest that both aligned with and deviated from

the recording. Mary Gross testified that “the first thing [the defendants] did is they came in and

they grabbed me and put my face into the utensils hanging on the wall . . . . [A]nd then . . . the

big heavy one took my knee and pushed it into the cabinet door thing and broke my knee.” She

claimed that, after an officer injured her knee, she began to hold onto the sink counter while the

officers attempted to take physical custody of her. Terry Gross testified that two officers first

handcuffed Mary Gross and “had ahold of her” before they announced that they had a warrant

for her arrest. He also said that when Mary Gross asked to get her clothes, the officers refused

her request and slammed her into the counter, “forced [her head] down into the dish rack,” and

“pulled her up and banged her into the counter and broke her leg.”

       In contrast, Officer Szopko testified that Mary Gross asked for clothing only after she

was arrested and handcuffed. He said that in the course of attempting to take custody of her,

Mary Gross struggled with Corporal Pellerito by “wrenching her body back and forth and trying

to pull her arms away from [them],” that she continued to hold her arms underneath her body

while they attempted to handcuff her by against the counter, and that they told her to stop

resisting throughout this encounter. Officer Szopko said that Mary Gross was “yelling that it

wasn’t her . . . that it was her sister.” He also testified that he did not recall her saying anything

at the house about her leg being broken, although he remembered seeing her limping after they

arrived at the jail. Officer Szopko and Corporal Pellerito both denied using any force on Mary

Gross beyond grabbing her arm to handcuff her.

       After Mary Gross was handcuffed, she was escorted to Sergeant Beedle-Peer’s patrol car

by Officer Szopko and Corporal Pellerito. How that was accomplished was also disputed by the

parties. Mary Gross claimed that she could not walk to the car and was made to hop on one foot.


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Just as none of the officers on the scene recalled hearing Mary Gross complain of an injury, no

one recalled that she had difficulty getting out of the house and into the patrol car. However, the

audiotape recording includes the following exchange between Mary Gross and the officers,

occurring after Mary Gross exclaimed that her leg had been broken:

               Mary: Oh, God.

               Officer: Instead of putting your weight on your foot, hop.

               Mary: My knee’s broke.

               Officer: Okay . . . .

               Officer: Put your butt right down there on the chair.

               Mary: Oh, God, my knee’s broke.

               Officer: Okay, just get yourself back in there, okay?

               Mary: Oh, God.

       Officer Szopko admitted that after they arrived at the Dearborn Heights jail, he saw Mary

Gross limping and heard her say that “her leg, her knee hurt” while he was escorting her inside.

Two videotapings of the booking area produced by defendants show Mary Gross limping into the

booking area with the assistance of Officer Szopko and Sergeant Beedle-Peer, repeatedly

rubbing her knee, and asking Officer Szopko and a booking officer at the jail, Michael Fraser,

not to “send [her] anywhere until [she can] go see a doctor to get this fixed.” She needed the

assistance of Officer Szopko to stand while her booking photos were made, and she was seated

in a wheelchair by Officers Szopko before having her fingerprints taken by Officer Fraser. She

was then wheeled out of the booking area in the wheelchair.

       Mary Gross was held at the Dearborn Heights jail for over 15 hours and incarcerated in

the Wayne County Jail for five days. Eventually, Kentucky officials realized that it was, in fact,


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Gross v. City of Dearborn

Mary Gross’s sister, Margaret, who was wanted in Kentucky, and Mary Gross was released from

custody. She was wheeled from her cell to the jail’s exit in a wheelchair and carried by Terry

Gross from there to their car. When she sought medical attention after her release, she was x-

rayed and diagnosed as having suffered two fractures of her right tibia at the tibial plateau just

below the knee, a lumbar compression fracture in her spine, facial abrasions, and arm and

shoulder contusions.

       The Grosses initially filed suit against Officer Szopko, Corporal Pellerito, Officer Fraser,

and the City of Dearborn Heights in state court, asserting that the defendants’ conduct in

arresting Mary Gross had violated her federal constitutional rights. The suit was removed to

federal court, and the Grosses filed an amended complaint, adding Sergeant Beedle-Peer as a

defendant. The defendants moved for summary judgment on all claims, arguing that the officers

were entitled to qualified immunity and that, because they did not commit constitutional

violations, the Grosses’ municipal liability and derivative claims could not survive. The district

court granted the motion, ruling that the defendants had entered the plaintiff’s residence only

after knocking and announcing their purpose; that Mary Gross had resisted arrest prior to being

handcuffed and that use of force to arrest her was therefore justified; that the Grosses provided

no factual basis for their claim that the officers’ use of force on Mary Gross was retaliatory; and

that Mary Gross’s injury was not obvious because it was discovered only after an x-ray. This

appeal followed.

                                      DISCUSSION

       Our review of a district court’s grant of summary judgment is conducted de novo.

Mazur v. Young, 507 F.3d 1013, 1016 (6th Cir. 2007). Summary judgment is appropriate “if the

pleadings, the discovery and the disclosure materials on file, and any affidavits, ‘show that there


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Gross v. City of Dearborn

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.’” Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).

“There is no genuine issue for trial [if] the record ‘taken as a whole could not lead a rational trier

of fact to find for the non-moving party.’” Id. (quoting Matsushita Elec. Indus., Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). Of primary significance in this case is that, in ruling on

the motion, “the district court must construe the evidence and draw all reasonable inferences in

favor of the nonmoving party.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir.

2008). Nevertheless, “the mere existence of a scintilla of evidence in support of the non-moving

party is insufficient to defeat a motion for summary judgment.” V & M Star Steel v. Centimark

Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986)).

       Despite our lengthy discussion of the facts in this case, the resolution of the principal

issues on appeal requires little in the way of legal analysis. As the background summary set out

above demonstrates, the record is replete with genuine disputes of material fact that rule out

summary judgment and necessitate submission of those issues to a trier of fact. Despite the

standard that requires a district court to construe all evidence and all reasonable inferences from

that evidence in the plaintiffs’ favor when a “genuine” dispute exists, the district court in this

case repeatedly made findings of fact by crediting the officers’ versions of what transpired at the

time of Mary Gross’s arrest. The district court justified its decision to do so based on the

Supreme Court’s ruling that “[w]hen opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”




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Gross v. City of Dearborn Heights, No. 12-15268, 2014 WL 346017, at *4 (E.D. Mich. Jan 30,

2014) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

        The “blatantly contradictory record” identified by the district court in this case was the

audiotaped recording made at the Grosses’ residence and the videotapes made at police

headquarters. But the videotapes do little or nothing to refute Mary Gross’s account of how she

was injured and how serious the injury was, and the audiotape does more to muddle than to

clarify what happened at the time of her arrest. In short, we conclude that the entry of summary

judgment based on qualified immunity cannot be sustained and that the case must be remanded

for further proceedings on the claims against the individual officers.

        With respect to the Grosses’ knock-and-announce claim for unlawful entry and seizure,

there are genuine disputes of material fact about whether the officers’ entry was forcible and

when the officers announced their purpose. Terry Gross testified that the officers forcibly

entered the home and that the officers announced their intent to arrest Mary Gross only after they

had grabbed her. Consistent with Terry Gross’s testimony, the audio recording of the encounter

captured a commotion shortly after Mary Gross refuses to come out of her home but before any

officer can be heard mentioning the warrant. Audio Recording 20:53–55. The audio recording

also captured the officers joking about “pushing grandpa aside.”         Id. at 20:59:30.    This

evidence—that the officers first forcibly entered the Grosses’ home, and, several seconds later,

announced that they had a warrant for Mary Gross’s arrest—creates genuine disputes of material

fact.


        With respect to the Grosses’ excessive force claim, there is a genuine dispute of material

fact about when Mary Gross was handcuffed. Terry Gross testified that the officers handcuffed

Mary Gross before slamming her into her kitchen counter, forcing her head into her dish rack,

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Gross v. City of Dearborn

and breaking her leg. The district court disregarded Terry Gross’s testimony because the court

believed his testimony was clearly contradicted by the audio recording and Mary Gross’s

testimony. But, contrary to the district court’s determination, Terry Gross’s testimony about the

timing of the officers’ handcuffing of Mary Gross can be reconciled with the audio recording,

and the Grosses provide a plausible explanation for the inconsistencies between Terry Gross’s

and Mary Gross’s testimony. When Terry Gross’s testimony is considered, a genuine dispute of

material fact exists regarding the timing of Mary Gross’s handcuffing.


       With respect to the Grosses’ claim of deliberate indifference to medical need, there is a

genuine dispute of material fact about whether Mary Gross’s medical need was obvious and

whether the officers were aware of the need or of circumstances clearly indicating the existence

of a need. The district court determined that, because Mary Gross’s injury was discovered only

after an x-ray, her injury was not obvious. But there is a genuine dispute about its obviousness in

light of evidence that Mary Gross informed the officers at least three times that her leg was

broken: shortly after Szopko and Pellerito struck her knee, Audio Recording at 20:55, while she

was being escorted to the patrol car by Szopko, id. at 20:56:15, and again while she was being

placed in the car, id. at 20:57:14. The video recording of Mary Gross’s booking also shows her

unable to walk or stand without assistance, repeatedly rubbing her knee, and asking Szopko and

Fraser not to send her anywhere until she saw a doctor.


       There is also a genuine dispute about the officers’ awareness of Mary Gross’s medical

need in light of evidence that she complained of a broken knee at the scene of her arrest, was told

by Szopko to “hop” instead of putting weight on her foot, Audio Recording at 20:56:15, limped

into the booking area with the assistance of Szopko and Beedle-Peer, rubbed her knee repeatedly,

asked Szopko and Michael Fraser to not “send [her] anywhere until [she can] go see a doctor to
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No. 14-1178
Gross v. City of Dearborn

get this fixed,” needed the assistance of Szopko to stand while taking her booking photos, was

placed in a wheelchair by Szopko and Fraser, had her fingerprints taken by Fraser while in a

wheelchair, and was wheeled out of the booking area. Video Recording 21:16:38-21:17:01,

21:17:34-21:18:04,    21:19:04-21:20:56,    21:31:13-21:33:05,    21:45:55-21:49:11,     21:53:55-

21:54:04.


       However, the district court’s grant of summary judgment on the Grosses’ First

Amendment retaliation claim was correct. The Grosses allege that the officers assaulted Mary

Gross during the arrest in retaliation for her request for clothing.      In a First Amendment

retaliation claim, the constitutionally protected activity—here, the request for clothing—must be

a motivating factor behind the retaliatory act. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998);

see also Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007). The Grosses provide nothing

to suggest that the officers’ use of force was motivated by the request for clothing. Accordingly,

grant of summary judgment on this claim was proper.


       Because the district court’s dismissals of the Grosses’ municipal liability claims and

Terry Gross’s derivative claims for loss of consortium were based on its dismissal of the

underlying claims, the district court should reconsider those claims on remand. The district

court’s additional reason for rejecting Terry Gross’s loss of consortium claim—that he had failed

to show an injury—was in error. This argument was not properly raised by the defendants

because it was not argued until the defendants’ reply brief. In reconsidering Terry Gross’s loss

of consortium on remand, the district court should consider Terry Gross’s testimony that, for

several months after the incident, he did “all the cooking, washing, cleaning, all the everything,”

and that he had sought counseling because of “trouble with [his] dreams and flashbacks and

everything like that and guilt.”
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                                      CONCLUSION

       For the reasons set out above, we REVERSE the judgment of the district court and

REMAND the case for further proceedings consistent with this opinion.




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