Kurzawski v. Branch Cnty.

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GREGORY KURZAWSKI, Plaintiff, v. BRANCH COUNTY, et al., Defendants.

No. 1:21-cv-687

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

January 23, 2023

REPORT AND RECOMMENDATION

SALLY J. BERENS U.S. MAGISTRATE JUDGE

Plaintiff Gregory Kurzawski has sued Defendants Branch County and Branch County Sheriff's Deputies James Andrews, Eric Waterbury, and Dalton Turmell pursuant to 42 U.S.C. § 1983. He alleges that the individual Defendants used excessive force on him, in violation of the Fourteenth Amendment, or alternatively, the Eighth Amendment, on October 15, 2018, while he was incarcerated at the Branch County Jail. Kurzawski further alleges that Branch County is liable for the alleged constitutional violations under Monell v Department of Social Services, 436 U.S. 658 (1978).

Presently before me is Defendants Branch County, Waterbury, and Turmell's Motion for Summary Judgment. (ECF No. 67.) Defendant Andrews has not moved for summary judgment. Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the motion be GRANTED.^[1]

I. Background

On October 15, 2018, Kurzawski was incarcerated at the Branch County Jail as a pretrial detainee. That evening, Defendant Andrews gave Kurzawski and another prisoner single-blade razors and escorted them to a common area room (CO room) to shave before their court appearances the following morning. (ECF No. 67-12 at PageID.378.) Andrews left the area to attend to other duties after instructing both inmates to shave and retain their razors, which Andrews would collect when he returned. (Id.)

While Andrews was away, Kurzawski removed the blade from the razor put the plastic handle in the trash can, and walked into the hallway, where he slipped the blade under his cell door. (ECF No. 67-2 at PageID.286; ECF No. 69 (Defs.' Ex. O (hallway video)).) When Andrews returned, he saw Kurzawski in the hallway and asked him why he was there. (ECF No. 67-12 at PageID.378.) Andrews told Kurzawski to return his razor. Kurzawski went to the CO room and retrieved the plastic handle from the trash can. (Id.; ECF No. 69 (Defs.' Ex. P (CO room video)).) When Andrews asked him about the blade, Kurzawski claimed that the blade came out cutting his finger. (ECF No. 67-12 at PageID.378.) Feigning not knowing what happened to the blade, Kurzawski searched the trash and the sink area. (ECF No. 67-2 at PageID.300; Defs.' Ex. P.) When Kurzawski failed to produce the blade, Andrews handcuffed Kurzawski and radioed for assistance. (ECF No. 67-12 at PageID.378; Defs' Ex. P.) Defendant Waterbury arrived shortly thereafter, followed by Defendant Turmell. (Defs.' Exs. O and P.) Kurzawski remained in handcuffs while Defendants searched the area for the blade.

When Defendants failed to locate the blade, Defendants Andrews and Turmell escorted Kurzawski to the shower area to be strip searched.^[2] (ECF No. 67-2 at PageID.287; Defs' Ex O.) Defendants did not locate the blade on Kurzawski's person. (ECF No. 67-12 at PageID.378.) According to Kurzawski, Andrews ordered him onto the shower floor and said, “if I find this razor, I'm going to beat your goddamn ass.” (ECF No. 6702 at PageID.288.) Andrews then left the shower area to watch the surveillance footage of the hallway to find out where Kurzawski put the blade, while Turmell remained with Kurzawski in the shower area. (ECF No. 67-2 at PageID.288; ECF No. 67-12 at PageID.378.) After Andrews reviewed the video, he and Waterbury located the razor under a bunk in cell B44. (Id.) Andrews then returned to the shower area where, according to Kurzawski, he said, “I seen you take the razor,” and kicked and punched Kurzawski in the ribs three to five times while he was on the floor. (ECF No. 67-2 at PageID.287-88.)

Andrews escorted Kurzawski, handcuffed, to a maximum-security cell for concealing and introducing a deadly weapon into the jail. (Id. at PageID.289; ECF No. 67-12 at PageID.379.) Andrews employed an escort hold, which involves raising the inmate's handcuffed arms up behind his back, in order to control Kurzawski's movements. (ECF No. 69 (Defs.' Ex. Q (East Hallway view)).) Defendants Turmell and Waterbury followed several feet behind as Andrews walked with Kurzawski. (Id.) Kurzawski claims that Andrews lifted his arms as high as they would go. He yelled, “I'm not resisting,” as they walked. (ECF No. 67-2 at PageID.289.) Kurzawski further alleges that Andrews slammed him into the door when they reached the end of the hallway. (Id.)

Defendant Waterbury opened the door to the maximum-security cell while Defendant Andrews escorted Kurzawski inside. (Defs.' Ex. Q.) Andrews ordered Kurzawski to the ground as Turmell and Waterbury stood in the doorway. (ECF No. 67-2 at PageID.290; ECF No. 67-3 at PageID.311; ECF No. 67-5 at PageID.335.) Once Kurzawski was on the ground, Andrews bent down to try to remove the handcuffs. (ECF No. 67-3 at PageID.311.) Because Kurzawski was moving his head from side-to-side trying to look up at Andrews and not holding still, Andrews struggled to remove the handcuffs. (ECF No. 67-2 at PageID.290; ECF No. 67-3 at PageID.311-12.) At that point Defendant Turmell entered the cell to assist Andrews in removing the handcuffs. Because Kurzawski was “thrashing about,” Turmell was unable to get his key into the handcuffs. (ECF No. 67-4 at PageID.324.) Kurzawski claims that Andrews put his knee in Kurzawski's back, although Andrews denies that he did this. (ECF No. 67-2 at PageID.290; ECF No. 67-3 at PageID.311.) As Andrews was trying to reposition himself to gain better control of Kurzawski, his knee collided with Kurzawski's chin, resulting in a loud “pop.” Kurzawski yelled, “You broke my fucking jaw,” as blood ran out of his mouth. (ECF No. 67-2 at PageID.290-91; ECF No. 67-3 at PageID.314.)

Defendants left Kurzawski handcuffed in the cell and returned to the control center to arrange for him to be taken to the hospital, as jail medical staff was not on duty at the time. (ECF No. 67-12 at PageID.382-83.) A short time later, Defendant Turmell transported Kurzawski to the local hospital in a patrol vehicle. (ECF No. 67-2 at PageID.291.) Kurzawski sustained a broken jaw and was eventually transferred to Bronson Hospital in Kalamazoo for surgery. (Id. at PageID.292.) Kurzawski was later charged and ultimately pled guilty to possession of a weapon based on the razor incident. (Id. at PageID.93.)

II. Motion Standard

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Material facts are facts that are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.

The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). When video evidence is presented, witness testimony will not create a genuine issue of material fact if the video is unambiguous and answers the pertinent factual questions. See Shreve v. Franklin Cnty., 743 F.3d 126, 132 (6th Cir. 2014) (citing Scott v. Harris, 550 U.S. 372, 380-81 (2007)).

III. Discussion

A. Excessive Force

Defendants Waterbury and Turmell moved for summary judgment, arguing that they are entitled to qualified immunity because Kurzawski has no evidence that they used force on him in a manner that violated the Fourteenth Amendment. Defendants further noted that the complaint alleged no unconstitutional act by Waterbury and, as to Turmell, alleged only that he struck Kurzawski in the shower, which Kurzawski's testimony confirms was not true. (ECF No. 67-1 at PageID.274 (citing ECF No. 1 at PageID.3 and ECF No. 67-2 at PageID.287-91.) In response, Kurzawski concedes that he has no evidence that Defendants Waterbury and Turmell used excessive and/or unreasonable force on him, but argues that questions of fact remain as to whether they failed to intervene and prevent Andrews from employing excessive force. (ECF No. 74 at PageID.447.) Defendants Waterbury and Turmell note in their reply that Kurzawski did not plead a failure to intervene claim in his complaint. They point out the complaint's sole claim against them was that they used excessive force on Kurzawski in violation of the Fourteenth Amendment, or alternatively, the Eighth Amendment, and did not include a separate count alleging a “failure to intervene.” They further argue that the complaint contains no factual allegation that could plausibly establish a failure to intervene claim. (ECF No. 77 at PageID.603-77.)^[3]

It is not uncommon for a plaintiff asserting an excessive force claim also to allege that officers who were present at the scene but did not use force failed to intervene to prevent the alleged violation. While a failure-to-intervene claim is closely related to an excessive force claim, it is nonetheless, a separate claim requiring proof of separate elements. See Kacynski v. Dewey, No. 1:20-cv-126, 2021 WL 5334369, at *2 (W.D. Mich. Apr. 5, 2021) (denying motion for leave to amend to add a failure-to-intervene claim in connection with existing excessive force claim due to failure to show good cause). For example, in Briggs v. Miles, No. 1:13-CV-228, 2014 WL 12725042 (W.D. Mich. Sept. 15, 2014), report and recommendation adopted, 2015 WL 1120132 (Mar. 12, 2015), which Kurzawski cites, the plaintiff-a prisoner proceeding pro...