                           STATE OF MICHIGAN

                             COURT OF APPEALS


THELONIOUS JACKSON,                                                  UNPUBLISHED
                                                                     July 5, 2018
               Plaintiff-Appellee,

v                                                                    No. 338275
                                                                     Genesee Circuit Court
DANIEL LUBELAN and PLATT R. WEINRICK,                                LC No. 16-108364-CZ

               Defendants-Appellants.


Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ.

SAWYER, P.J. (dissenting).

       I respectfully dissent.

       As we observed in Oliver v Smith, 269 Mich App 560, 566; 715 NW2d 314 (2006), a
“police officer’s conduct of handcuffing an individual too tightly does not constitute gross
negligence unless physical injury results.”

        This cause of action was first filed in the United States District Court of Michigan for the
Eastern District and then appealed to the United States Sixth Circuit Court of Appeals. Both of
the courts determined that plaintiff experienced no physical injury resulting from the
handcuffing. Both courts determined that, to the extent plaintiff experienced any injury during
the arrest, it could only have happened as a result of his placement in the police car after he was
handcuffed.

        Collateral estoppel precludes relitigation of issues or facts that have already been decided
in prior litigation. Wilcox v Sealey, 132 Mich App 38, 46; 346 NW2d 889 (1984). It is clear
from the record that all elements of collateral estoppel have been met here. The exact issue of
whether or not plaintiff experienced a physical injury resulting from the handcuffing was
litigated by a judgment of the federal district court and later affirmed by the Sixth Circuit.
Moreover, plaintiff points to no additional evidence to support a finding of personal injury that
would be uncovered with yet more discovery in the state court action.




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        I therefore conclude that the trial court erred by allowing the gross negligence claim
based on handcuffing the plaintiff to proceed. The court should have granted summary
disposition to both defendants.

       I would reverse.



                                                         /s/ David H. Sawyer




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