                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0183n.06

                                       No. 09-2171

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                         FILED
KENNETH HOWARD,                              )                        Mar 29, 2011
                                             )                   LEONARD GREEN, Clerk
       Plaintiff-Appellant,                  )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
WAYNE COUNTY SHERIFF’S OFFICE,               )   EASTERN DISTRICT OF MICHIGAN
WAYNE COUNTY, DEPUTY FRANK                   )
WOOD, and DEPUTY JOHN HARDIE,                )
                                             )
       Defendants-Appellees.                 )




       Before: DAUGHTREY, CLAY, and WHITE, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Kenneth Howard appeals

from the order of the district court granting summary judgment to the defendants in this

civil rights action charging them with arresting Howard without probable cause and using

excessive force in making the arrest. Howard filed his original complaint pro se in state

court, raising various state tort and constitutional claims against Wayne County, the Wayne

County Sheriff’s Office, and two Wayne County Deputy Sheriffs, Frank Wood and John

Hardie. After removal to federal court, the district judge construed some of the allegations

in the complaint as raising federal constitutional claims and treated the action as one

arising under 42 U.S.C. § 1983.
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Howard v. Wayne County Sheriff’s Office

       Following responsive pleadings and a period of discovery, the district court granted

the defendants’ motion for summary judgment, ruling that the plaintiff had been subject to

a constitutionally valid arrest for obstructing an officer in the performance of his duties and

that the use of pepper spray did not constitute excessive force in this case because

Howard was actively resisting arrest at the time it was used. The district court therefore

dismissed the claims against the deputies and ruled that the County and the Sheriff’s

Office were not subject to suit under the circumstances in the record.


       We agree that the record fails to support the complaint against the County and that

there is no legal basis for the claim against the Sheriff’s Office. We therefore affirm that

portion of the district court’s judgment. Based on the current Michigan statute and the

cases interpreting it, we conclude that the district court’s decision to dismiss Howard’s

claims of false, malicious, and unconstitutional arrest must also be affirmed. For the

reasons set out below, however, we find that the court’s decision dismissing the excessive-

force claim is not supported by the record and must be reversed.


                    FACTUAL AND PROCEDURAL BACKGROUND


       In ruling upon the defendants’ motion for summary judgment, the district court

succinctly recounted the facts pertinent to this dispute in its memorandum opinion:


       This lawsuit arises from Plaintiff’s arrest by Defendant Frank Wood, a Wayne
       County Sheriff’s Deputy, in the lobby of the Coleman A. Young Municipal
       Center [ ] in Detroit. According to defendants, Plaintiff, a former employee
       of the City of Detroit working in the [municipal building], elbowed Wood in the

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Howard v. Wayne County Sheriff’s Office

      stomach as he proceeded through the employee entrance security
      checkpoint on the morning of August 8, 2006. When Wood ordered that
      Plaintiff stop, Plaintiff allegedly responded with a profane statement to the
      effect that Wood needed to get out of his way. Wood then informed Plaintiff
      multiple times that he was under arrest but Plaintiff refused to submit.
      During this time Wood alleges that Plaintiff made more profane statements
      and began to walk toward the elevators. In response, Wood called for a
      backup and Defendant John Hardie, also a Wayne Country Sheriff’s Deputy,
      appeared at the scene.
      Plaintiff, meanwhile, disputes Wood’s description of these events. Plaintiff
      maintains that he politely stated “excuse me” as he entered the [municipal
      building] and waited for other employees and Wood to respond before
      walking through the security checkpoint. Plaintiff denies making physical
      contact with Wood and using profanity that morning. After Plaintiff made it
      half-way to the elevators, however, Wood demanded that he stop and come
      back. Plaintiff alleges that Wood asked if Plaintiff had bumped him. Plaintiff
      apologized if he had in fact bumped Wood, but also explained that he had
      said “excuse me.” This discussion continued for a few moments before
      Wood allegedly stated, “I don’t know you, so you can’t say I’m giving you a
      hard time.” Wood then indicated that Plaintiff was under arrest and ordered
      that Plaintiff turn around and place his hands behind his back. As Wood
      reached for Plaintiff’s hand, Plaintiff claims to have put up his hands in
      surprise. Plaintiff admits that Wood ordered him to submit to arrest four or
      five times but claims that, during this exchange, Wood initially refused to
      indicate why he was being arrested. After Plaintiff asked to know the
      charges multiple times, Wood indicated that he was being arrested for
      assault. Plaintiff then asserts that he and Wood walked together towards the
      elevators in a joint effort to get out of the way of other employees in the
      [municipal building]. As they walked, Plaintiff heard Wood call for backup
      and a female onlooker informed Wood that she had notified the command
      station that he needed assistance. Plaintiff admits that he yelled at the
      woman, called her “Goldie Locks,” and told her to mind her own business.
      Once Hardie arrived as backup, Wood sprayed Plaintiff with pepper spray,
      took him to the ground, and placed him in handcuffs. Plaintiff asserts that
      Wood’s take-down maneuver choked him and caused him to blackout as he
      was being handcuffed. Once Plaintiff was back on his feet, Hardie led him
      to a jail facility located inside the [municipal building]. Plaintiff was ultimately
      charged with assaulting an officer, being a disorderly person, and refusing
      the lawful command of an officer. Plaintiff was acquitted of all charges by a
      jury in 2007.


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Howard v. Wayne County Sheriff’s Office

       Based on these events, Plaintiff acting pro se, filed the present action
       against Wood, Hardie, the Wayne County Sheriff’s Department, and Wayne
       County in Wayne County Circuit Court. Plaintiff’s complaint presents six
       claims: (I) violation of his rights as protected by the Michigan Constitution;
       (II) assault and battery and excessive force; (III) unlawful arrest in violation
       of the Michigan Constitution; (IV) false arrest, false imprisonment, and
       intentional infliction of emotional distress; (V) false imprisonment; and (VI)
       malicious prosecution in violation of the Fifth and Fourteenth Amendments
       of the United States Constitution. Defendants removed the action to this
       Court . . . on the basis of federal question jurisdiction.


Howard v. Wayne County Sheriff’s Office, No. 08-13501, 2009 WL 2849135, at **1-2 (E.D.

Mich. Sept. 1, 2009) (citations omitted).


       Following discovery, the plaintiff voluntarily dismissed his two causes of action

premised upon violations of the Michigan Constitution. The defendants then filed a motion

for summary judgment in their favor on each of the remaining claims in Howard’s

complaint. Cognizant of the leniency to be accorded pro se pleadings, however, the district

court, prior to ruling upon the summary judgment motion, interpreted Howard’s state-law

tort claims to raise federal constitutional issues pursuant to 42 U.S.C. § 1983.

Nevertheless, the court concluded that under applicable Michigan law, defendant Wood

had probable cause to arrest Howard for obstruction after the plaintiff refused to comply

with the order to place his hands behind his back.


       Furthermore, the district court granted summary judgment to the defendants on

Howard’s excessive-force claim, despite agreeing with the plaintiff that genuine issues of

material fact remained regarding the necessity of using the degree of force employed by


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Howard v. Wayne County Sheriff’s Office

Wood and, derivatively, by Hardie. The court concluded, however, that “[t]he precise

contours of the right to be free from the use of excessive force remain unclear where an

individual offers some form of resistance to an arresting officer.” Howard, 2009 WL

2849135, at *7. Because the district court therefore deemed the right asserted by Howard

as not “clearly established,” the court found Wood and Hardie “shielded from liability by

qualified immunity.” Id.


       The district court also dismissed all claims against defendants Wayne County and

the Wayne County Sheriff’s Department. Quoting Sumner v. Wayne County, 94 F.

Supp.2d 822, 827 (E.D. Mich. 2000), the court recognized that because the sheriff’s

department “‘is merely a department within the jurisdictional authority of Wayne County,’

it is not an entity capable of being sued and must be dismissed.” Howard, 2009 WL

2849135, at *3 (citation omitted). The court also granted summary judgment in favor of the

county itself because the plaintiff made no allegation and offered no evidence to suggest

“that Wood’s alleged use of excessive force was caused by a Wayne County policy or

failure to train,” id. at *7, n.4, as required by Monell v. Department of Social Services, 436

U.S. 658 (1978).


                                       DISCUSSION


       We review de novo the grant of summary judgment by a district court. See Ciminillo

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment “should be rendered



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Howard v. Wayne County Sheriff’s Office

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

there is no genuine issue as to any material fact and that the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). No genuine issue of material fact

exists when, assuming the truth of the non-moving party’s evidence and construing all

inferences from that evidence in the light most favorable to that party, the movant is

entitled to judgment as a matter of law. The district court’s failure to decide the excessive-

force issue under this principle constitutes reversible error in this case.


Arrest Without Probable Cause


       Howard first contends that defendant Wood arrested him without probable cause

and thus violated his constitutional right to be free from unreasonable seizures. In order

to state successfully such a claim under 42 U.S.C. § 1983, Howard “must set forth facts

that, when construed favorably, establish (1) the deprivation of a right secured by the

Constitution or laws of the United States (2) caused by a person acting under the color of

state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West

v. Atkins, 487 U.S. 42, 48 (1988)) (additional citation omitted). Neither party in this case

disputes the fact that Wood, at the time he arrested the plaintiff, was acting under color of

state law as a uniformed deputy of the Wayne County Sheriff’s Department. Instead,

Howard, in presenting this claim to the panel on appeal, asserts only that he adduced

sufficient evidence to create a genuine issue of material fact regarding Wood’s justification

for arresting him in the first place. Specifically, the plaintiff asserts that Michigan law


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Howard v. Wayne County Sheriff’s Office

provides that an individual cannot be subject to arrest for “obstructing” an officer in the

performance of that official’s duties unless the arrestee has used or threatened physical

force or has knowingly failed “to comply with a lawful command.” Mich. Comp. Laws Ann.

§§ 750.81d(1) and (7)(a) (2004). According to Howard, because he offered a version of

events that would not have justified Wood in making any arrest, the defendant deputy’s

directive that the plaintiff place his hands behind his back and submit to an arrest was not

“a lawful command.”


       As highlighted by Howard, the relevant Michigan statute does indeed seem to

require a “lawful” command as a condition precedent to an arrest for obstruction of a

person performing his or her duties. Despite the seemingly unambiguous language crafted

by the Michigan legislature, however, Michigan state courts have interpreted the wording

of section 750.81d(7)(a) in a manner that allows arrests in situations never contemplated

by the state’s lawmakers. In People v. Mitchell, No. 278801, 2008 WL 4276542 (Mich.

App. Sept. 16, 2008), for example, the Michigan Court of Appeals broadly applied

language from another case from that same court to conclude that section 750.81(d)(1)

does “not includ[e] the requirement . . . that the underlying arrest be legal.” Id. at *2 (citing

People v. Ventura, 686 N.W.2d 748, 750-56 (Mich. App. 2004)).


       In Ventura, however, the Michigan Court of Appeals examined a situation in which

the defendant had been arrested for resisting arrest under Mich. Comp. Laws Ann.

§ 750.81d, not for obstructing the performance of official duties. See Ventura, 686 N.W.2d


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Howard v. Wayne County Sheriff’s Office

at 752 (“A person may not use force to resist an arrest made by one he knows or has

reason to know is performing his duties regardless of whether the arrest is illegal. . . .”

(emphasis added)). Because section 750.81d(7)(a) explicitly defines “obstruction,” but not

“resisting,” to include “a knowing failure to comply with a lawful command,” it seems clear

that the Michigan legislature sought to differentiate between the admittedly related

concepts of “resisting arrest” and “obstructing a person performing official duties.”


       Were this court called upon to interpret Michigan law on a blank slate, it might well

choose to adhere to the strict language of Ventura without the imprecise, expansive gloss

added to that case by Mitchell. However, we are not in a position to reinterpret the

Michigan judiciary’s evaluation of Michigan statutory law. We must, instead, defer to state-

court precedent that equates “resistance” and “obstruction” under section 750.81d(1),

despite the statute’s explicit differentiation of the concepts.


       In any event, the academic exercise of parsing the statutory language is of no help

to Howard in this case. The incident report prepared by defendant Wood after the seizure

of the plaintiff clearly indicates that Howard was arrested for “assault upon [a] police

officer,” “resist[ing] arrest,” and “disorderly conduct.” The theoretical distinctions applicable

to arrests for “obstruction” are thus irrelevant in this matter and Howard was required to

comply with Wood’s request to place his hands behind his back regardless of whether the

defendant deputy sheriff had probable cause to voice such an order. The district court did




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not, therefore, err in granting summary judgment to the defendants on Howard’s claim of

false arrest/malicious prosecution.


Excessive Force/Qualified Immunity


       Howard also alleges that his right to be free from the use of excessive force was

violated when Wood arrested him. The district court agreed with the plaintiff that his

version of the events leading to his arrest would support the conclusion that Wood used

unnecessarily excessive force in subduing the plaintiff. See Howard, 2009 WL 2849135,

at *6 (“Plaintiff denies making physical contact with Wood at any time, denies using

profanity, denies yelling at Wood, and denies walking away from Wood to avoid arrest.

Viewing these facts in the light most favorable to Plaintiff, Wood’s conduct might be found

to have constituted excessive force.” (citation omitted)). Indeed, in the face of a claim of

exercise of excessive force, a court must pay “careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor,

490 U.S. 386, 396 (1989).


       Here, taking each fact in the light most favorable to the plaintiff, the record shows

that Howard walked into the municipal building where he worked, moved past defendant

Wood after saying “excuse me,” and was accosted by the deputy sheriff, who, after a short

discussion, informed Howard that he was under arrest for an unspecified transgression.

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Wood reached to grab Howard’s hand, but Howard jerked his hands away in surprise and

asked several times to know the charge against him. Even after Wood eventually

responded that he was arresting Howard for assault, the plaintiff did not exhibit any signs

of verbal or physical aggression toward the defendant. The plaintiff did, however, in the

face of continued orders to place his hands behind his back, disobey the directives and

continue discussing (peacefully) why Wood should not arrest him. After Deputy Hardie

arrived on the scene to offer assistance, Wood then, without provocation, sprayed Howard

in the face with pepper spray, placed his hands and arms around the plaintiff’s neck, and

forcefully took Howard to the ground, landing atop the plaintiff.


       Despite finding that such actions amounted to a deprivation of Howard’s

constitutional right to be free from the use of excessive force, the district judge further

concluded that the right was not “clearly established” because “[t]he precise contours of

the right to be free from the use of excessive force remain unclear where an individual

offers some form of resistance to an arresting officer.” Howard, 2009 WL 2849135, at *7.

The district court thus found “Wood shielded from liability by qualified immunity and

defendants . . . entitled to summary judgment on Plaintiff’s excessive force claim.” Id.

(footnote omitted).


       Qualified immunity from liability is available to government officials “insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).


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In other words, “[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). Although “the exact action in question [need] not [have]

previously been held unlawful by a court,” the plaintiff must still “show the prior articulation

of a prohibition against the type of excess force exerted here.” Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 901-02 (6th Cir. 2004).


       In reaching its conclusion that the defendant deputies were entitled to qualified

immunity, the district judge cited three Sixth Circuit cases involving the use of pepper spray

in an attempt to elucidate the purported lack of uniformity in such decisions occasioned by

an arrestee’s varying levels of resistance to authority. Howard, 2009 WL 2849135, at *7

(citing Greene v. Barber, 310 F.3d 889, 898 (6th Cir. 2002); Abdul-Khaliq v. City of Newark,

275 F. App’x 517 (6th Cir. 2008); Vaughn v. City of Lebanon, 18 F. App’x 252 (6th Cir.

2001)). In two of those cited cases, however, the plaintiffs admitted, or did not dispute,

engaging in incendiary actions that served to inflame already-volatile situations. Greene,

for example, called the arresting officer “an asshole” and “really stupid,” see Greene, 310

F.3d at 892-93, and was “physically” and “verbally resisting arrest in an aggressive

manner.” Id. at 899. Abdul-Khaliq also admitted to being verbally abusive toward the

arresting officers, as well as “open[ing] or rais[ing] his coat in a potentially threatening

manner” before being sprayed with pepper spray. Abdul-Khaliq, 275 F. App’x at 518.




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       By contrast, Vaughn, like Howard, denied engaging in any actions that would justify

arresting officers using pepper spray to subdue him. Because belief in the veracity of

Vaughn’s accounts of his encounters with the police and their pepper spray canisters

would lead to the conclusion that excessive force had been used to take him into custody,

we reversed the district judge’s grants of qualified immunity to those defendants who could

be connected to pepper-spraying by Vaughn’s testimony or by other evidence. See

Vaughn, 18 F. App’x at 266-70.


       Interestingly, in one such incident, Vaughn even “admitted to ‘jerk[ing] one hand

away’ as one of the officers attempted to handcuff him.”            Id. at 268.   This court

nevertheless reversed the district court’s grant of summary judgment for the defendant on

a qualified immunity claim, noting that “there is a question of fact whether [Vaughn] posed

an immediate threat to the safety of the officers or others, or whether the officers

interpreted his movement as an attempt to resist arrest.” Id. Similarly, in this case,

although Wood claimed that Howard pulled his arm away from the deputy when Wood was

attempting to arrest him, the plaintiff claims merely “to have put up his hands in surprise.”

Howard, 2009 WL 2849135, at *1. Such testimony again creates a genuine issue of

material fact for a jury to consider in determining whether the response of Deputy Wood

was excessive in light of the plaintiff’s statements and actions.


       There is no dispute that “[t]he use of a chemical weapon such as pepper spray is

not per se unreasonable.” Vaughn, 18 F. App’x at 266. Nevertheless, it is also true that


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“[w]e have previously found that the use of a chemical weapon, if unreasonable in manner,

may constitute excessive force.” Id. (citing Adams v. Metiva, 31 F.3d 375, 384 (6th Cir.

1994)). Thus, by the time of Howard’s encounter with Wood in August 2006, the principle

of law was already clearly established that use of pepper spray on an arrestee who was

not accused of a serious crime, was not posing an immediate threat to the safety of the

officer or others, and was not actively resisting arrest or seeking to flee is constitutionally

unreasonable.


       Crediting the testimony of the plaintiff, as we must, Howard was neither belligerent

nor violent in any of his dealings with Deputy Wood. Additionally, evidence adduced by the

plaintiff suggested that he had never resisted arrest but merely attempted to ascertain the

reason for his detention. In such a situation, a jury could reach the conclusion that use of

pepper spray against the plaintiff constituted excessive force. The district court thus erred

in granting summary judgment to defendants Wood and Hardie1 based upon the doctrine

of qualified immunity.




       1
          The district judge found Hardie protected by qualified immunity as to Howard’s
excessive force claim because “the claim against Hardie is based on Hardie’s failure to
prevent Wood from using excessive force,” Howard, 2009 WL 2849135, at *7 n.4, and if
Wood did not violate a clearly-established right, Hardie’s inaction also could not lead to
section 1983 liability. On the other hand, a finding that Wood did indeed violate Howard’s
right to be free from the application of excessive force during an arrest could also lead to
liability for Hardie on the plaintiff’s derivative claim.

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Howard v. Wayne County Sheriff’s Office

                                      CONCLUSION


       We find no merit to the remaining issues raised on appeal. The district court did not

err in dismissing what Howard labels “federal tort claims,” because Howard did not identify

any federal actors with regard to those claims. Nor can the district court be reasonably

accused of judicial bias toward Howard. In fact, the district judge accorded the pro se

plaintiff every benefit of the doubt when interpreting his pleadings and ruling on motions.

Finally, we reject Howard’s claim that the district court erred in granting summary judgment

to the defendants without ensuring that they had responded adequately to Howard’s

discovery requests, because he never filed a motion to compel discovery. Moreover, in light

of our order of remand, the plaintiff will have additional opportunities for discovery prior to

the commencement of any trial.


       Because we conclude that the plaintiff established sufficient evidence to raise a

genuine issue of material fact regarding whether defendants Wood and Hardie used, or

permitted the use of, excessive force in his arrest, we find it necessary to REVERSE the

judgment of the district court on the claim of excessive force and REMAND the case for

further proceedings on that claim. In all other respects, the district court’s judgment is

AFFIRMED.




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       HELENE N. WHITE, Circuit Judge (concurring). I join in the majority’s reversal of

the district court’s grant of summary judgment to defendants on Howard’s excessive force

claim and its discussion of the qualified-immunity issue. I also join in the majority’s

conclusion that the district court did not err in granting summary judgment to defendants on

Howard’s claim of false arrest/malicious prosecution.




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