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Civil Rights (3) Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 77564 Case: Smith v. Commonwealth of KY Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Clay, Rogers, and Kethledge Issues: 42 USC § 1983; Claims against a state under the Thirteenth Amendment for a state officer’s sexual assaults; Whether the Thirteenth Amendment provides for a private cause of action; Eleventh Amendment sovereign immunity Summary: The court affirmed the district court’s dismissal of plaintiffs’ action for violations of the Thirteenth Amendment arising from their alleged sexual abuse by a state probation officer, holding that the Thirteenth Amendment neither provides a private cause of action for damages nor abrogates state sovereign immunity. A probation officer was charged with several crimes against plaintiffs. They sued under § 1983 and the Thirteenth Amendment. They withdrew the § 1983 claim after it was challenged on statute of limitations grounds. Their Thirteenth Amendment claim alleged that defendants violated their “Thirteenth Amendment rights to be free from ‘unwanted sexual physical contact,’ ‘unwanted intrusion upon Plaintiffs’ person(s) for the sexual gratification of Defendants’ employee,’ ‘sexual physical assault,’ and ‘unwanted sexual contact.’” The court first held that there is no private cause of action under the Thirteenth Amendment, explaining that “‘[t]he Supreme Court has never recognized a cause of action arising directly under the Constitution in a case where § 1983 was available as a remedy,’ and ‘it is unnecessary and needlessly redundant to imply a cause of action arising directly under the Constitution where Congress has already provided a statutory remedy of equal effectiveness through which the plaintiff could have vindicated her constitutional rights.’” The court noted that “‘§ 1983 provides the exclusive remedy for constitutional violations’ for rights protected by the Fourteenth Amendment where Congress has not otherwise provided a cause of action.” It concluded that “the Thirteenth Amendment is more like the Fourteenth Amendment than the Fourth, Fifth, and Eighth Amendments.” It also rejected plaintiffs’ claim that the States abrogated their right to Eleventh Amendment sovereign immunity when they ratified the Thirteenth Amendment. The court held that ““[t]he text of the Thirteenth Amendment and relevant authority” showed that the Amendment did not expressly abrogate Kentucky’s sovereign immunity. While the court acknowledged “the severity of Plaintiffs’ allegations, controlling precedent limits its capacity to craft a new path for relief where Plaintiffs simply failed to timely file their complaint under” § 1983. Full Text Opinion Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 77550 Case: Westmoreland v. Butler Cnty., KY Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Clay and Gibbons; Dissent – Bush Issues: Pretrial detainee claim for failure to protect in violation of the Eighth & Fourteenth Amendments; 42 USC § 1983; Qualified immunity; Application of the “objective unreasonableness” test; Application against an individual officer Summary: In an order, the court denied the petition for rehearing en banc (see e-Journal # 77181 in the 4/1/22 edition for the court’s opinion). In its prior opinion, deciding an issue of first impression in this circuit, the court applied the objective unreasonableness standard to an individual officer on a failure-to-protect claim by a pretrial detainee. It held that only “an objective showing that an individual defendant acted (or failed to act) deliberately and recklessly” is required. The original panel reviewed the petition and concluded “that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.” Thus, the petition was denied. Full Text Opinion Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 77549 Case: Wiley v. City of Columbus, OH Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Siler, Kethledge, and Readler Issues: Fourth Amendment excessive force claim under 42 USC § 1983; Qualified immunity; “Clearly established” right; Distinguishing Champion v. Outlook Nashville, Inc & Martin v. City of Broadview Heights; Municipal liability; Official policy or custom Summary: The court affirmed summary judgment based on qualified immunity for defendants-police officers as to plaintiff’s excessive force claim arising from their use of the “maximum resistor technique” on her decedent (Thomas), who died of cardiac arrest. It held that she failed to show that Thomas had a clearly established right against this type of force. He called 911 and told the dispatcher he believed he might be overdosing on cocaine, that he had a rapid heartbeat, he was hallucinating, “and that he feared he would be shot.” Five minutes after the call, police were on the scene. When defendant-Pinkerman knocked on the door, Thomas ran out of the house screaming. After falling down several times and refusing to obey Pinkerman’s orders, other officers arrived and he was eventually handcuffed but “continued being uncooperative and combative . . . .” An officer left to get a “hobble strap.” While waiting for the strap, defendant-Andrews tried to restrain the still-resisting Thomas by using the maximum resistor technique. Defendants-Shaffner and Stephens assisted him. Their goal “was to restrain Thomas to permit paramedics to safely enter the scene and treat Thomas for an overdose.” He arrived at the hospital in critical condition, and never regained consciousness. A medical expert disputed the coroner’s opinion that Thomas died from a cardiac arrest caused by the cocaine, and countered that the cardiac arrest was “caused by ‘forcible restraint that precluded adequate breathing.’” Thomas’s estate sued for excessive force under § 1983 and for Ohio state-law claims. Plaintiff disputed the district court’s finding that there was no record evidence indicating that either Andrews or Shaffner applied pressure to Thomas’s back or torso when he was on the ground. She argued that the initial statement of a paramedic, which was later changed, and a photo of a bruise supported her position and created a genuine issue of fact prohibiting summary disposition. The court found the evidence too speculative, as there were many reasons why a bruise could have appeared in that area. Further, as to whether plaintiff showed the violation of a clearly established right, it found the cases on which she relied distinguishable, and held that the officers were entitled to qualified immunity. Defendant-city was also entitled to summary judgment because plaintiff could not establish “that Thomas suffered an injury due to the city’s official policy or custom.” Full Text Opinion

Constitutional Law (3) Full Text Opinion This summary also appears under Civil Rights e-Journal #: 77564 Case: Smith v. Commonwealth of KY Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Clay, Rogers, and Kethledge Issues: 42 USC § 1983; Claims against a state under the Thirteenth Amendment for a state officer’s sexual assaults; Whether the Thirteenth Amendment provides for a private cause of action; Eleventh Amendment sovereign immunity Summary: The court affirmed the district court’s dismissal of plaintiffs’ action for violations of the Thirteenth Amendment arising from their alleged sexual abuse by a state probation officer, holding that the Thirteenth Amendment neither provides a private cause of action for damages nor abrogates state sovereign immunity. A probation officer was charged with several crimes against plaintiffs. They sued under § 1983 and the Thirteenth Amendment. They withdrew the § 1983 claim after it was challenged on statute of limitations grounds. Their Thirteenth Amendment claim alleged that defendants violated their “Thirteenth Amendment rights to be free from ‘unwanted sexual physical contact,’ ‘unwanted intrusion upon Plaintiffs’ person(s) for the sexual gratification of Defendants’ employee,’ ‘sexual physical assault,’ and ‘unwanted sexual contact.’” The court first held that there is no private cause of action under the Thirteenth Amendment, explaining that “‘[t]he Supreme Court has never recognized a cause of action arising directly under the Constitution in a case where § 1983 was available as a remedy,’ and ‘it is unnecessary and needlessly redundant to imply a cause of action arising directly under the Constitution where Congress has already provided a statutory remedy of equal effectiveness through which the plaintiff could have vindicated her constitutional rights.’” The court noted that “‘§ 1983 provides the exclusive remedy for constitutional violations’ for rights protected by the Fourteenth Amendment where Congress has not otherwise provided a cause of action.” It concluded that “the Thirteenth Amendment is more like the Fourteenth Amendment than the Fourth, Fifth, and Eighth Amendments.” It also rejected plaintiffs’ claim that the States abrogated their right to Eleventh Amendment sovereign immunity when they ratified the Thirteenth Amendment. The court held that ““[t]he text of the Thirteenth Amendment and relevant authority” showed that the Amendment did not expressly abrogate Kentucky’s sovereign immunity. While the court acknowledged “the severity of Plaintiffs’ allegations, controlling precedent limits its capacity to craft a new path for relief where Plaintiffs simply failed to timely file their complaint under” § 1983. Full Text Opinion Full Text Opinion This summary also appears under Civil Rights e-Journal #: 77550 Case: Westmoreland v. Butler Cnty., KY Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Clay and Gibbons; Dissent – Bush Issues: Pretrial detainee claim for failure to protect in violation of the Eighth & Fourteenth Amendments; 42 USC § 1983; Qualified immunity; Application of the “objective unreasonableness” test; Application against an individual officer Summary: In an order, the court denied the petition for rehearing en banc (see e-Journal # 77181 in the 4/1/22 edition for the court’s opinion). In its prior opinion, deciding an issue of first impression in this circuit, the court applied the objective unreasonableness standard to an individual officer on a failure-to-protect claim by a pretrial detainee. It held that only “an objective showing that an individual defendant acted (or failed to act) deliberately and recklessly” is required. The original panel reviewed the petition and concluded “that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.” Thus, the petition was denied. Full Text Opinion Full Text Opinion This summary also appears under Civil Rights e-Journal #: 77549 Case: Wiley v. City of Columbus, OH Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Siler, Kethledge, and Readler Issues: Fourth Amendment excessive force claim under 42 USC § 1983; Qualified immunity; “Clearly established” right; Distinguishing Champion v. Outlook Nashville, Inc & Martin v. City of Broadview Heights; Municipal liability; Official policy or custom Summary: The court affirmed summary judgment based on qualified immunity for defendants-police officers as to plaintiff’s excessive force claim arising from their use of the “maximum resistor technique” on her decedent (Thomas), who died of cardiac arrest. It held that she failed to show that Thomas had a clearly established right against this type of force. He called 911 and told the dispatcher he believed he might be overdosing on cocaine, that he had a rapid heartbeat, he was hallucinating, “and that he feared he would be shot.” Five minutes after the call, police were on the scene. When defendant-Pinkerman knocked on the door, Thomas ran out of the house screaming. After falling down several times and refusing to obey Pinkerman’s orders, other officers arrived and he was eventually handcuffed but “continued being uncooperative and combative . . . .” An officer left to get a “hobble strap.” While waiting for the strap, defendant-Andrews tried to restrain the still-resisting Thomas by using the maximum resistor technique. Defendants-Shaffner and Stephens assisted him. Their goal “was to restrain Thomas to permit paramedics to safely enter the scene and treat Thomas for an overdose.” He arrived at the hospital in critical condition, and never regained consciousness. A medical expert disputed the coroner’s opinion that Thomas died from a cardiac arrest caused by the cocaine, and countered that the cardiac arrest was “caused by ‘forcible restraint that precluded adequate breathing.’” Thomas’s estate sued for excessive force under § 1983 and for Ohio state-law claims. Plaintiff disputed the district court’s finding that there was no record evidence indicating that either Andrews or Shaffner applied pressure to Thomas’s back or torso when he was on the ground. She argued that the initial statement of a paramedic, which was later changed, and a photo of a bruise supported her position and created a genuine issue of fact prohibiting summary disposition. The court found the evidence too speculative, as there were many reasons why a bruise could have appeared in that area. Further, as to whether plaintiff showed the violation of a clearly established right, it found the cases on which she relied distinguishable, and held that the officers were entitled to qualified immunity. Defendant-city was also entitled to summary judgment because plaintiff could not establish “that Thomas suffered an injury due to the city’s official policy or custom.” Full Text Opinion

Criminal Law (1) Full Text Opinion e-Journal #: 77579 Case: People v. Wohlscheid Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Borrello, Jansen, and Murray Issues: Motion for a new trial based on ineffective assistance of counsel; Strickland v Washington; Prejudice; People v Hoag; Remand for an evidentiary hearing as to the effectiveness of counsel; People v Ginther Summary: The court held that the trial court did not abuse its discretion by denying defendant’s motion for a new trial based on ineffective assistance of counsel. He was convicted of CSC IV after refusing two plea deals that would have allowed him to plead guilty to misdemeanor assault and battery. The trial court denied his motion for a new trial based on his trial counsel’s (P) alleged ineffectiveness. On appeal, the court rejected his argument that the trial court abused its discretion by doing so. “Because the trial court’s findings of fact were supported by ample record evidence,” the court was “not firmly convinced that the trial court was mistaken in any of its factual findings.” It noted that the facts showed P “knew that the assistant prosecutor was getting frustrated with granting deadline extensions, so [he] understood that the second Cobbs hearing date would be defendant’s final chance to accept. [P] in fact successfully fought for the deadline extension to the second Cobbs hearing.” In addition, there was “nothing in writing containing a deadline, and as noted, [P] pursued defendant’s late attempt to accept the plea offer.” In light of the trial court’s findings of fact, defendant’s argument that P rendered ineffective assistance was meritless. P’s “actions met an objective standard of reasonableness. [His] actions, including securing two Cobbs hearings and record evidence of repeated plea discussions, enabled defendant to make informed and voluntary decisions about whether to plead.” Further, P “could not have failed to convey acceptance to the prosecutor before the deadline because defendant did not wish to accept before the deadline. Although defendant considered pleading guilty if certain terms of the proposed probation met his approval, [he] maintained his innocence throughout the proceedings, even at the Ginther hearing.” Affirmed. Full Text Opinion

Election Law (1) Full Text Opinion e-Journal #: 77563 Case: Davis v. Wayne Cnty. Election Comm'n Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Murray, K.F. Kelly, and Letica Issues: Challenge to judicial candidates’ eligibility to be on the primary ballot; A circuit court’s subject-matter jurisdiction; MCL 600.605; O’Connell v Director of Elections; Writ of mandamus; Barrow v Wayne Cnty Election Comm’n; Requirements for being placed on the ballot; MCL 168.550; Affidavit of Identity (AOI); MCL 168.558(2); “Must”; Vyletel-Rivard v Rivard; Principle that an AOI need not show that the name stated on it is a name change if the reason for the change is due to marriage; MCL 168.552(3)(c); Strict compliance; Moore v Genesee Cnty; Sanctions for filing a frivolous complaint Summary: The court held that the circuit court erred by finding it lacked subject-matter jurisdiction to hear plaintiff’s claims challenging the eligibility of two judicial candidates (defendants-Hathaway and Cox) to be on the 8/22 primary ballot. As such, it also held that the circuit court should have reached the merits of the claims and dismissed them because plaintiff failed to show that the candidates’ AOIs were deficient. Finally, it vacated the circuit court’s decision to award sanctions for plaintiff having filed a frivolous complaint. Plaintiff contended Hathaway and Cox were disqualified from being placed on the ballot due to deficient AOIs. The circuit court found it lacked jurisdiction and dismissed the case. The court first found the circuit court had subject-matter jurisdiction. “[T]he simple fact is that plaintiff has not sued the state, any of its departments, or any state officials. Plaintiff has sued a county election commission and two individuals seeking elected office, and they are amenable to suit in the circuit court. Those claims fall within the broad subject-matter jurisdiction of the circuit court, and the circuit court erred by holding otherwise.” Turning to the merits, it rejected plaintiff’s claim that neither candidate’s AOI satisfied the requirement that “an AOI ‘must contain . . . the title of the office sought including the jurisdiction, district, circuit, or ward . . .’” As to Hathaway, plaintiff failed to show “any infirmity with [his] AOI, and thus, failed to demonstrate that [he] should be deemed ineligible to appear on the August primary ballot.” The AOI stated that Hathaway was “running for the office of ‘Judge’” and included the circuit in which he sought judicial office. In addition, plaintiff did not show any infirmity in his AOI on the basis that he legally changed his last name to adopt his wife’s last name. As to Cox, the court found that for the same reason discussed as “to Hathaway, [he] clearly satisfie[d] the requirement that the AOI state the ‘jurisdiction, district, circuit, or ward.’” The AOI also clearly listed “the title of the office sought: a ‘judgeship’ sought by a ‘judicial candidate.’” But the court vacated the circuit court’s decision to award attorney fees and costs because it was based “on a conclusion that the complaint was frivolous, a decision premised on the erroneous conclusion that it lacked jurisdiction.” Affirmed in part, vacated in part, and remanded. Full Text Opinion

Family Law (1) Full Text Opinion e-Journal #: 77560 Case: Golden v. Ward Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Cameron, and Patel Issues: Custody; Children’s best-interests factors (c), (d), (h) & (k); Child support Summary: The court affirmed the trial court’s custody decision and remanded for further analysis as to the issue of child support. In Docket No. 357875, defendant-father appealed the trial court’s 6/29/21 opinion and order, where the trial court estimated his income for purposes of child support. In Docket No. 358428, he appealed the trial court’s 9/1/21 order, which granted plaintiff-mother “sole custody of the parties’ children and ordered defendant to pay $1,896 each month in child support.” As to custody, the court held that in light of its “conclusions that the trial court’s findings on factors (c), (d), (h) and (k) were not clearly erroneous,” there was no basis for the court to hold that “the trial court abused its discretion by awarding plaintiff sole custody.” This was “especially the case when considering that the trial court did not conclude that any of the factors weighed in favor of defendant.” Although defendant argued that “the trial court failed to give factors (a), (e), (f), and (g) sufficient weight, ‘[a] court need not give equal weight to all the factors, but may consider the relative weight of the factors as appropriate to the circumstances.’” The court held that given “the parties were unable to cooperate and agree generally concerning important decisions affecting the welfare of their children, and given the best-interest factors, . . . the trial court did not abuse its discretion by awarding plaintiff sole custody.” Also, as to child support, the court concluded that it was necessary to remand for further consideration. Full Text Opinion

Insurance (2) Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 77558 Case: Kidd v. Liberty Mut. Gen. Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Cameron, and Patel Issues: Action for third-party no-fault benefits; Serious impairment of body function; MCL 500.3135(1); Documents attached to a motion for reconsideration; Independent medical exam (IME) Summary: Declining to consider the exhibits attached for the first time to plaintiff’s motion for reconsideration, the court held that the trial court did not err in determining she did not suffer a serious impairment of body function as a result of the accident. Thus, it affirmed summary disposition for defendant-Salame. The case arose from a low-speed auto accident. The court noted that plaintiff relied on exhibits she had first attached to her motion for reconsideration in the trial court. However, the court “considers only ‘what was properly presented to the trial court before its decision on’” a summary disposition motion. Plaintiff asked it to reverse the trial court’s summary disposition order, not the order denying her motion for reconsideration. Noting that her medical records revealed “a history of back pain before the accident[,]” the court found that none of the records properly before it linked her back pain after it “or the findings on the lumbar MRI to the accident itself. Rather,” the doctor who conducted an IME of plaintiff specifically determined that her “back pain was not linked to the accident. While defendant’s expert linked plaintiff’s neck injury to the accident and conceded that six to eight weeks of chiropractic and physical therapy treatment was reasonable, the records and testimony properly before us are insufficient to establish that plaintiff’s neck injury affected her general ability to lead her normal life. Plaintiff testified that it was primarily her back pain, not her neck pain, that limited her daily life.” The court further noted that some of the changes in her “daily life were not caused by the accident. Rather, they were caused by her grandchildren growing older and jazz concerts not being in season.” Full Text Opinion Full Text Opinion e-Journal #: 77556 Case: Mehtar v. Fremont Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Borrello, Shapiro, and Hood Issues: Action seeking personal protection insurance benefits for injuries sustained in an auto accident; MCL 500.3101(1); Whether the accident arose out of the “ownership, operation, maintenance or use of a motor vehicle as a motor vehicle”; MCL 500.3105(1); McPherson v McPherson; Independent medical exam (IME) Summary: The court held that the trial court erred by granting plaintiff’s motion for partial summary disposition because a question of fact remained as to whether his auto accident caused his injuries. Plaintiff sought benefits from defendant-insurer for injuries he claimed to have sustained in the auto accident. Defendant initially paid the benefits, but later discontinued payment based on surveillance footage and an IME. Plaintiff then filed this action. The trial court denied summary disposition for defendant, finding it could not use the surveillance evidence because of its failure to respond to plaintiff’s discovery requests. In a prior appeal, the court denied defendant leave. The trial court then granted partial summary disposition for plaintiff, finding defendant failed to show a genuine dispute of fact as to his alleged neck and back injuries. It also awarded him attorney fees and penalty interest. In the present appeal, the court agreed with defendant that the trial court erred by granting summary disposition for plaintiff because he “failed to show no genuine dispute of material fact as to the injuries to his neck and back.” It noted the IME and plaintiff’s “medical records attached to the motion for partial summary disposition establish a question of fact as to whether his alleged neck injury arose out of the accident.” In addition, the trial court erred by considering the evidence as to plaintiff’s “alleged neck injury because it failed to view the evidence in a light most favorable to” defendant. Reversed and remanded. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion This summary also appears under Insurance e-Journal #: 77558 Case: Kidd v. Liberty Mut. Gen. Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Cameron, and Patel Issues: Action for third-party no-fault benefits; Serious impairment of body function; MCL 500.3135(1); Documents attached to a motion for reconsideration; Independent medical exam (IME) Summary: Declining to consider the exhibits attached for the first time to plaintiff’s motion for reconsideration, the court held that the trial court did not err in determining she did not suffer a serious impairment of body function as a result of the accident. Thus, it affirmed summary disposition for defendant-Salame. The case arose from a low-speed auto accident. The court noted that plaintiff relied on exhibits she had first attached to her motion for reconsideration in the trial court. However, the court “considers only ‘what was properly presented to the trial court before its decision on’” a summary disposition motion. Plaintiff asked it to reverse the trial court’s summary disposition order, not the order denying her motion for reconsideration. Noting that her medical records revealed “a history of back pain before the accident[,]” the court found that none of the records properly before it linked her back pain after it “or the findings on the lumbar MRI to the accident itself. Rather,” the doctor who conducted an IME of plaintiff specifically determined that her “back pain was not linked to the accident. While defendant’s expert linked plaintiff’s neck injury to the accident and conceded that six to eight weeks of chiropractic and physical therapy treatment was reasonable, the records and testimony properly before us are insufficient to establish that plaintiff’s neck injury affected her general ability to lead her normal life. Plaintiff testified that it was primarily her back pain, not her neck pain, that limited her daily life.” The court further noted that some of the changes in her “daily life were not caused by the accident. Rather, they were caused by her grandchildren growing older and jazz concerts not being in season.” Full Text Opinion