Pierce v. Bailey

1

PERRY PIERCE, Plaintiff, v. P. BAILEY, et al., Defendants.

No. 1:22-cv-863

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

July 10, 2023

REPORT AND RECOMMENDATION

SALLY J. BERENS U.S. MAGISTRATE JUDGE

Plaintiff Perry Pierce, a county detainee in the Berrien County Jail (BCJ), filed a pro se complaint pursuant to 42 U.S.C. § 1983 against Berrien County employees Sheriff P. Bailey Lieutenant Unknown Herbert, and Sergeant K. Robbins (incorrectly identified in the complaint as Kristin Robbinson), alleging claims based on events that occurred at the BCJ from January to June 2022. Following initial review by the Court pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c), Plaintiff's remaining claim was his excessive force claim against Defendant Robbins under either the Eighth or Fourteenth Amendment. (ECF No. 6 at PageID.31, 41; ECF No. 7.) Following initial review, counsel appeared for Plaintiff and filed a motion for leave to file an amended complaint, which I granted in part on April 5, 2023. (ECF Nos. 27 and 33.) Plaintiff filed his amended complaint on April 10, 2023 alleging a Fourth Amendment excessive force claim against Defendant Robbins, as he was an arrestee at the time of the incident and had neither been arraigned nor had a probable cause hearing. (ECF No. 35 at PageID.122, 124-25.)

Presently before me is Defendant Robbins's Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 36), arguing that she is entitled to qualified immunity. The motion is fully briefed and ready for decision. For the reason that follow pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the motion be DENIED.

I. Background

A. Plaintiff's Allegations

Plaintiff has been diagnosed with mental illness, including bipolar disorder and paranoid schizophrenia, with suicidal ideation. On January 28, 2022, he was arrested and lodged in the BCJ for resisting and obstructing a police officer. At the time of the arrest, Plaintiff was experiencing delusions. Plaintiff was taken to the BCJ and placed in a male inmate holding cell with 11 other inmates. (ECF No. 35 at PageID.122.)

Security video from January 29, 2022, shows Plaintiff standing near the cell's glass door, appearing to call out to guards in an agitated manner. Six guards then gathered at the front of the cell to extract Plaintiff from the cell, intending to move him to a smaller isolation cell. When the guards opened the door, Plaintiff exited into their arms. The guards then took Plaintiff to the ground and placed him in handcuffs with his arms behind his back. Security video shows two guards leave to go to the destination cell while the remaining four guards carried Plaintiff by his arms and legs to the destination cell. (Id. at PageID.122-23.)

Security video shows that once Plaintiff was in the isolation cell, the four guards dropped him face first on to the floor. Five guards then gathered around Plaintiff, kneeling on his limbs, torso, and neck, apparently loosening the handcuffs while Plaintiff offered no visible resistance. While the five guards were dealing with Plaintiff, the sixth guard, Defendant Robbins, walked to the doorway to observe the events. Defendant Robbins then began shaking her pepper spray in anticipation of using it on Plaintiff. When Plaintiff's arms were released from the handcuffs, he put his arms on the floor beside his head and turned his head to see the guards. At that point all but one guard exited the cell, while Defendant Robbins remained in the doorway. The remaining guard knelt on Plaintiff's legs, holding them folded, heels to butt, and then removed his taser and pointed it at the back of Plaintiff's head. Plaintiff was subdued and exhibited no active resistance. The security video shows that, as the sixth guard left the cell while Plaintiff remained on the floor, Defendant Robbins intentionally sprayed her cannister of pepper spray from the doorway directly into Plaintiff's face and eyes. Plaintiff alleges that the pepper spray caused him significant pain and discomfort and negatively impacted his vision. (Id. at PageID.123-24.)

B. Security Videos

In support of her motion to dismiss, Defendant Robbins has presented security video from three different cameras depicting the events in question from three different views: (1) inside the holding cell with other inmates present; (2) the lobby/control center hallway outside the cell; and (3) the isolation cell. None of the video footage contains audio.

The video is fairly consistent with Plaintiff's description in his amended complaint. Beginning with the holding cell video, Plaintiff is shown standing in front of the cell door speaking or calling out to the guards while other arrestees/detainees are standing/sleeping/sitting nearby. Around 4:34:26, as the guards begin to assemble on the other side of the door, Plaintiff raises and moves his hand repeatedly and quickly back and forth, but it is not clear whether he is pounding on the door. As Plaintiff waits for the guards to open the door, he assumes what appears to be an aggressive stance and rocks back and forth. When the guards open the door, Plaintiff quickly walks out into their arms as they grab him and struggle to take him to the ground. The lobby/control video begins by showing a male guard milling about while other guards, including Defendant Robbins, are present. As the male guard approaches the cell door, five other guards (including Robbins) walk toward, and assemble in front of, the door. The male guard then opens the door and Plaintiff quickly walks out into the guards' arms. As the five guards struggle with Plaintiff, a sixth guard joins them, and they eventually get Plaintiff on the ground. Once Plaintiff is secured in handcuffs, one guard leaves and walks ahead, while the five remaining guards carry Plaintiff to the isolation cell.

The final video shows the guards carrying Plaintiff into the isolation cell at around 4:35:49.493. Three guards, a male and two females, carry Plaintiff through the door. As they enter the cell, the female guard carrying Plaintiff's head/shoulders appears to lose her grip, and Plaintiff's head/upper torso falls a short distance to the ground. Four guards then grab Plaintiff and reposition him by turning him around with his head facing away from the door. Another guard joins those four, and the five guards restrain Plaintiff's arms and legs, apparently to remove his handcuffs, while Defendant Robbins watches just inside the doorway. During this time, Robbins removes her pepper spray cannister from her holster and begins to shake it. The female guards then leave the cell, followed by a male guard, leaving two male guards restraining Plaintiff. One of the male guard grabs Plaintiff's legs in the bent position, while the other male guard leaves the cell. After Plaintiff moves his left arm and turns his head to the left, the male guard places his hand on Plaintiff's back momentarily. Seconds later, with his knee still on Plaintiff's legs, the male guard draws his taser and points it at Plaintiff's head. As the male guard stands up from Plaintiff to leave, Defendant Robbins administers a burst of pepper spray toward Plaintiff's head. The guards then leave and close the door. After wiping his face with his shirt, Plaintiff washes his face and eyes with water at the sink, then returns to the door, where he continues calling out to the guards.

II. Motion Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court more recently held, to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” If the complaint simply pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. As the Court further observed:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to relief.”

Id. at 678-79 (internal citations omitted).

In general, when deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court's review is limited to the four corners of the pleading at issue. Fed. R Civ. P 12(d); see also Courser v. Michigan House of...