Jarvela v. Washtenaw Cnty.

CORY JARVELA Plaintiff, v. WASHTENAW COUNTY, et al. Defendants.

Civil Action No. 19-12157

United States District Court, E.D. Michigan, Southern Division

August 2, 2021

OPINION & ORDER

(1) GRANTING IN PART AND DENYING IN PART DEFENDANT RICHARD HOUK'S MOTION FOR SUMMARY JUDGMENT (Dkt. 81); (2) GRANTING DEFENDANT WASHTENAW COUNTY'S MOTION FOR SUMMARY JUDGMENT (Dkt. 81);

(3) GRANTING DEFENDANT ANDREW HAYES'S MOTION FOR SUMMARY JUDGMENT (Dkt. 78); (4) GRANTING DEFENDANTS ROBERT TREVINO AND VILLAGE OF CLINTON'S MOTION FOR SUMMARY JUDGMENT (Dkt. 76);

(5) GRANTING PLAINTIFF CORY JARVELA'S MOTION TO STRIKE EXPERT AND EXPERT REPORT (Dkt. 74); AND (6) GRANTING IN PART AND DENYING IN PART HOUK AND WASHTENAW'S MOTION TO EXCLUDE EXPERT TESTIMONY (Dkt. 80)

MARK A. GOLDSMITH United States District Judge

This case concerns an encounter between Plaintiff Cory Jarvela and several police officers, including Defendants Robert Trevino of the Village of Clinton Police Department, Richard Houk of the Washtenaw County Sheriff's Department, and Andrew Hayes of the Michigan State Police.^[1]Jarvela operated his vehicle while intoxicated one night and crashed his car into a tree while attempting to evade Trevino's pursuit. After he fled on foot, he was pursued by Houk, Trevino, and Argo, a canine under Houk's control. When Argo located Jarvela the dog and Jarvela fought, leading to a forceful arrest. Jarvela sued Houk and Trevino for excessive force, Hayes for failure to intervene, Houk for malicious prosecution under state and federal law, and the Village of Clinton and Washtenaw County for customs and practices allegedly causing the officers to violate Jarvela's rights.

The Defendants all filed motions for summary judgment. Summary judgment is denied as to the excessive force claim against Houk. The balance of Houk's summary judgment and each of the other Defendants' motions for summary are granted. Additionally, Jarvela filed a motion to strike Houk and Washtenaw's expert and expert report, which is granted. Finally, Houk and Washtenaw filed a motion to exclude Jarvela's expert testimony, which is granted in part and denied in part.

I. BACKGROUND

The facts leading up to the encounter between Jarvela and the officers are relatively uncontested. On August 19, 2017 Jarvela consumed an estimated four to six Bacardis-and-Coke at his home. Jarvela Dep. at 15-16 (Dkt. 81-2). Jarvela then drove from his home to a Shell gas station to buy cigarettes. Id. at 16. A gas station employee called Trevino's cell phone to report that a “drunk guy” had just left the gas station and was driving a black Chevrolet Silverado. Trevino Dep. at 40-41 (Dkt. 81-3).

A. Trevino's pursuit of Jarvela

Trevino saw Jarvela cross his path within seconds of putting his phone down and began to follow him. Trevino observed Jarvela drift to the center of the road and increase his speed in a 25-mile-per-hour-zone. Id. at 42-43. When the road crossed into Washtenaw County and the speed limit increased to 55 miles per hour, Jarvela “increased his speed dramatically well over the 55-zone.” Id. at 44.

At some point during this pursuit, after observing a traffic violation, Trevino turned on his lights. Id. at 43-44. Trevino then radioed his dispatch to describe the pursuit and to advise Washtenaw County of the pursuit, because he had crossed into their jurisdiction. Id. at 45. Four to five minutes into the pursuit, Jarvela crashed his truck into a tree. Id. at 46. Trevino saw Jarvela exit the truck and flee through what Trevino described as “thick brush.” Id. at 48. Trevino checked the vehicle for passengers and clues as to why Jarvela might have fled. Id. at 50-54. He then took a moment to compose himself and assess the situation. Id. at 54.

B. The search for Jarvela

Trevino did not pursue immediately. Id. According to Trevino, Houk was the next officer to arrive on the scene, approximately 11-13 minutes after Trevino had stopped. Id. at 55-56. Trevino brought Houk up to speed. Id. at 57. Houk was a canine handler and brought his dog, Argo, out of Argo's space in Houk's vehicle. Houk was equipped with a body-worn camera, which recorded a 14 minute, 26 second video, beginning shortly after Houk's arrival and concluding after Jarvela's arrest. Houk Video (Dkt. 81-7).^[2]

Houk retrieved Argo from the patrol vehicle and placed a harness on him with “SHERIFF” emblazoned in neon yellow, as well as a 15-foot lead. Houk Video at 00:38-00:56; Houk Dep. at 47 (Dkt. 100-6). Houk choked up on the lead so that Argo was only between 5-10 feet away during the track. Houk Dep. at 50-51.

Houk and Argo began the track to locate Jarvela with Trevino trailing behind to provide cover. Houk Dep. at 55-56. Using the German command “Suchen” or “Such” Houk commanded Argo to search.^[3] Argo proceeded to search around the area, which included mowed lawn and what Houk described as waist-high weeds. See Houk Video at 3:00-6:00; Houk Dep. at 58.

In the meantime, after he fled his car, Jarvela laid down in the weeds. Jarvela Dep. at 27. He admitted that he was trying to evade the police when he went into the weeds. Id. He said that he passed out. Id. For reasons he could not remember, he took off the white t-shirt and white shoes he had been wearing. Id. at 28.

Argo, Houk, and Trevino located the shoes and shirt before they located Jarvela. At 5:57 in the video, a white t-shirt matching the description of what Jarvela had been wearing that night appears visible on the camera. Houk clicked his radio and said what sounds like “we've got his shoes and his shirt back here, so he's trying to [inaudible] his clothes.” Id. at 6:00.

C. The encounter between Jarvela, Argo, Houk, and Trevino

The encounter between Jarvela and the officers begins at approximately 6:10 in the video, when Jarvela first appears on the screen. The parties dispute what happened next.

1. Jarvela's testimony

According to Jarvela, he came to when Argo bit his arm and a flashlight was shone in Jarvela's face. Jarvela Dep. at 30. He said he was on his back with a dog biting his right bicep and heard a “bunch of yelling and demands” for him to get on his stomach. Id. at 30-31. He gave the following testimony regarding what happened after hearing the command for him to get on his stomach:

I was ordered to get on my stomach, to stop resisting. I was laying on my back. Argo was on my right bicep. So, I'm either going to take this 90-pound dog and throw him over the top of my body to get on my stomach, or I'm going to roll over to the easiest path, which would've been for me to roll over to my right, where I'm still fighting a 90-pound dog on my arm and trying to get his mouth out of my bicep. So, I rolled over on top of Argo, to try to get his arm off-try to get his mouth off of my arm.

Id. at 32.

He said he tried to take his left hand across his body to grab the dog by the snout and pull the dog off his arm. Id. at 33. He said he flipped over to the right, which meant that he rolled on top of Argo's head, while Argo's mouth was still biting down on Jarvela's right arm. Id. at 3435. At that point, when he was on his stomach (and on top of part of Argo's body), he was struck by Houk on the back of the head multiple times and told to get on his back. Id. at 36. “So, ” Jarvela said, “I rolled back over onto my back, where I was struck by a taser, then rolled back over and was struck by another taser.” Id.

Jarvela further testified that he was dragged “out of the weeds by Argo and Deputy Houk” and put on his stomach. Id. at 41. Michigan state troopers, who Jarvela believed arrived sometime during the commotion with Argo, handcuffed him. Id. at 41-42. Jarvela was then transported to Herrick Hospital, and then to the University of Michigan Hospital, for medical treatment. Id. at 42.

2. Trevino and Houk's testimony

The officers remembered the encounter differently, with a particular point of dispute being whether Argo or Jarvela attacked the other first. Upon seeing Jarvela and being caught by surprise, Houk “gave the tracking command again.” Houk Dep. at 130. On the video, right after Jarvela appears on screen, Houk can indeed be heard yelling “Suchen.” Houk Video at 6:11. He then gave Argo the “apprehension command, ” which is the word “packen.” Houk Dep. at 131.^[4]

Houk testified that when he first saw Jarvela, he did not tell Jarvela to stay down or show his hands. Id. at 62. The reason was that “upon contact [Jarvela] attacked the dog.” Id. He said that the first time he saw Jarvela, Jarvela was “sitting up and aggressing the dog.” Id. Houk said that when Jarvela sat up, Argo was not yet gripping him. Id. at 63. Houk testified that he did not pull back on the lead, because Jarvela was attacking the dog. Id. at 64. When asked, Houk stated that he did not know whether he gave the “packen” command before or after Jarvela made contact with Argo's head. Id. at 69.

Trevino likewise testified that Jarvela partially sat up and made contact with Argo before Argo bit him. Trevino Dep. at 67. When asked if Jarvela punched Argo with a closed fist or used the palm of his hand to push Argo away, Trevino described the contact as “kind of more of an open hand like punch slash open hand like he kind of had it open and then kind of pushed it away, but it was at the dog's face.” Id. at 68.

3. The video

The video is inconclusive as to whether Argo or Jarvela attacked the other first, but Jarvela does appear to sit up from his back. See Houk video at 6:10-6:20. The audio is fairly clear. Houk yells the following words during this encounter: “Suchen, Packen, Packen, Packen, Packen Packen, attaboy, get that guy, hold ‘em, hold ‘em, hold ‘em.” Houk Video at 6:10-6:24. After the fourth “Packen” in this sequence another voice, presumably Trevino's, can...