                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0537n.06

                                             No. 10-2061
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                             May 24, 2012
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk
LYDALE SHUMATE,                                        )
                                                       )
        Plaintiff-Appellee,                            )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
v.                                                     )       COURT FOR THE EASTERN
                                                       )       DISTRICT OF MICHIGAN
JOHNATHON CLEVELAND, SCOTT                             )
BLANCHARD,                                             )                  OPINION
                                                       )
        Defendants-Appellants.                         )




        BEFORE: SUHRHEINRICH, STRANCH and DONALD, Circuit Judges.


        PER CURIAM. Johnathon Cleveland and Scott Blanchard, police officers for the city of

Ferndale, Michigan, appeal a district court order denying in part their motion for summary judgment

in an action alleging civil rights violations and state tort claims.

        Plaintiff Lydale Shumate filed a complaint against the two defendants arising out of events

that occurred on October 20, 2008. He asserted that the defendants violated his constitutional rights

by being deliberately indifferent to his serious medical needs and employing excessive force. He

also raised a number of state law tort claims. The defendants moved for summary judgment on the

grounds of qualified immunity and governmental immunity, appending several depositions of the

parties and other witnesses. Shumate filed a response, also relying on discovery materials. The

district court granted the motion in part, but denied it in part, allowing the claim of deliberate
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Shumate v. Cleveland, et al.

indifference to proceed against both defendants, and the claims of excessive force and state law

assault and battery to proceed against defendant Blanchard. This interlocutory appeal followed.

       Summary judgment is proper where the evidence of record shows that there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a). In ruling on a summary judgment motion, the evidence must be viewed, and

inferences drawn, in the light most favorable to the nonmoving party. Biegas v. Quickway Carriers,

Inc., 573 F.3d 365, 374 (6th Cir. 2009).

       Construing the evidence in the light most favorable to Shumate, it appears that his co-worker

at a convalescent center called 911 for medical assistance because Shumate was behaving strangely.

He was observed staggering around in the parking lot of the center, speaking incoherently. The

defendants responded, followed closely by an ambulance, firetruck, and other police officers. While

cursing at the officers, Shumate told them that he did not need the police, he was a diabetic, and he

just needed some sugar. Shumate’s license was checked, and it was discovered that he had

outstanding traffic warrants. The officers refused the ambulance crew’s offer to check Shumate’s

blood sugar. They attempted to place him in handcuffs, which he resisted, falling against a car and

nearly falling down a stairwell to the basement of the center. The officers also noted that there was

a danger Shumate might go out into the street in front of traffic. Eventually, handcuffs were

successfully applied and Shumate was placed in the back seat of a police car. He was lying on his

side and being pulled across the back seat by defendant Blanchard. Froth or spittle had formed at

the corners of his mouth, and when Shumate angrily demanded to know why he was being arrested

instead of receiving medical treatment, some saliva sprayed onto Blanchard’s face and chest.

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Blanchard punched Shumate in the face with his fist and then closed the car door. The officers drove

Shumate to the police station, approximately one mile away, where he was placed in a holding cell.

The ambulance crew followed and were permitted to treat Shumate there. His blood sugar was

found to be extremely low. He was given dextrose and soon recovered. He was then taken to a

hospital and released several hours later. No charges were filed against him.

       Defendants are not entitled to qualified immunity on the claim of deliberate indifference to

Shumate’s serious medical need if it would have been clear to a reasonable officer that their conduct

was unlawful in light of clearly established law. See Schreiber v. Moe, 596 F.3d 323, 329 (6th Cir.

2010). Deliberate indifference has been defined as a state of mind tantamount to an intent to punish.

Horn by Parks v. Madison Cnty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). Defendants cite

to Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005), in which the court found

a defendant not deliberately indifferent to the plaintiff’s need for treatment for her diabetes, where

the defendant delayed seeking treatment but was not shown to have a culpable state of mind. That

case is distinguishable, however, because the plaintiff had no physical symptoms of distress. Id. at

794. Here, Shumate was obviously behaving strangely, staggering around and frothing at the mouth,

and he requested medical treatment. The medical personnel on the scene offered to treat him, but

defendants insisted on placing him in custody and removing him to the police station. The district

court properly found that defendants were less qualified to assess Shumate’s medical needs, and yet

overruled the opinion of the ambulance crew. If a jury believed Shumate’s version of the facts,

defendants would not be entitled to qualified immunity; the district court therefore properly denied



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summary judgment to defendants on this claim. See Bouggess v. Mattingly, 482 F.3d 886, 888 (6th

Cir. 2007).

        In order to be entitled to qualified immunity on Shumate’s claim of excessive force,

defendant Blanchard would have to show that a reasonable officer would believe that punching

Shumate in the face after being spit on was not unlawful. The factors considered in a claim of

excessive force are the severity of the crime involved, any threat to the safety of the officer, and the

extent to which the plaintiff is resisting. See Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167,

174 (6th Cir. 2004). Here, Shumate was being arrested on outstanding traffic warrants, he was

handcuffed and being placed in the back of the police car, and he was only verbally resisting the

officer. We have held that striking a person in handcuffs is objectively unreasonable. Schreiber, 596

F.3d at 332. Blanchard admitted that he was upset when Shumate’s saliva sprayed on him. He did

not explain why it was necessary to punch Shumate in the face before closing the car door, which

would seem to be sufficient to protect him from further spitting. A jury who believed Shumate’s

version of the facts could find that excessive force was used. Therefore, summary judgment was

properly denied on this ground.

        Finally, Blanchard moved for summary judgment on the state tort of assault and battery based

on governmental immunity. We have jurisdiction over an interlocutory appeal concerning a pendent

state law claim alleged to be barred by governmental immunity. Livermore ex rel. Rohm v. Lubelan,

476 F.3d 397, 408 (6th Cir. 2007). Governmental immunity will be applied in cases alleging

intentional torts such as assault and battery where the defendant acted in good faith and not with

malice. Odom v. Wayne Cnty., 760 N.W.2d 217, 228-29 (Mich. 2008). Here, a jury could conclude,

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based on Shumate’s version of the facts, that Blanchard acted with malice in punching him and had

no good-faith reason for doing so. Therefore, summary judgment was properly denied on this claim.

       For the above reasons, the district court’s order denying defendants’ motion for summary

judgment in part is affirmed.




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