Member Dale Conder’s Contribution Published in April 2022 DRI Newsletter

From The Brief Case:  DRI Committee News  April 2022|Volume 1 Issue 2  (Read the full newsletter.)

Cases of Interest from the U.S. Sixth Circuit

By Dale Conder

DeCrane v. Eckart, 12 F.4^th 586 (6^th Cir. 2021)

When Cleveland, Ohio, needed a new fire chief, McGinnis, DeCrane, the department’s training director, applied, too. The mayor’s choice surprised DeCrane because McGinnis was behind on his training hours. Someone, not DeCrane, leaked this to the media, and McGinnis resigned. Although DeCrane kept his job, he alleged that he suffered retaliation in not receiving promotions, having his work undermined, etc. The Sixth Circuit affirmed the district court’s denial of Eckart’s qualified-immunity-based summary judgment. The Sixth Circuit held that if DeCrane had tipped off the media, he would have done so as a private citizen.

Barrera v. City of Mount Pleasant, 12 F.4^th 617 (6^th Cir. 2021)

Sergeant Murch saw a car he had stopped on two different occasions. Each stop resulted in charges for drug-related crimes. Murch ran the plates, discovering the owner did not have a driver’s license. After the car sped away, Murch stopped it. He asked the three individuals for identification; two of the three complied. Because the third person refused to identify himself, Murch arrested him for violating a state statute requiring identification. A strip search at the jail led to the discovery of drugs. After Barrera got out of prison, he sued the city and Murch. The Sixth Circuit affirmed the grant of qualified immunity to Murch because he had probable cause to arrest Barrera for violating the state law.

Smith v. City of Toledo, 13 F.4^th 508 (6^th Cir. 2021)

Smith attended the fire academy to fulfill his dream of being a firefighter. Smith was unable to complete the vertical-ventilation test. After further instruction, Smith tested two more times, failing each time. No trainee before was allowed to test more than three times. In an effort to diversify the department, the academy provided individual instruction and allowed him to test two more times. But the result was the same. When the academy discharged him, he sued for violations of Title VII and conspiracy to violate his civil rights. The Sixth Circuit affirmed summary judgment for all defendants.

Gerber v. Herskovitz, 14 F.4th 500 (6^th Cir. 2021)

For years, when Saturday came, a group of protesters picketed Ann Arbor’s Beth Israel Synagogue. The protesters oppose the State of Israel and its conduct. When the city refused to enforce its sign ordinance, the congregants sued the city and the protesters. The allegations were violations of the Religious Freedom Restoration Act, Religious Land Use and Institutionalized Persons Act, substantive due process, and the First Amendment. The Sixth Circuit affirmed dismissal because the First Amendment protects such protests.

Phillips v. Tangilag, 14 F.4^th 524 (6^th Cir. 2021)

Following a fight with his cellmate, Phillips believed he had sprained his ankle. After the pain and discoloration went away, Phillips complained of a lump in his leg and pain. The doctor ordered various tests to confirm the lump was not cancerous. The tests showed this was a benign lump. Phillips saw a private orthopedic surgeon who agreed. Phillips sued alleging the prison was inflicting cruel and unusual punishment on him. Because surgery is not the standard of care for a benign lump, the Sixth Circuit affirmed dismissal.

Brawner v. Scott County, 14 F.4th 585 (6th Cir.), petition for en banc review denied, 18 F.4th 551 (6th Cir. 2021).

In this case, a three-judge panel held that the Supreme Court’s holding in Kingsley v. Hendrickson applied not only to pre-trial detainees’ excessive-force claims, but to pre-trial detainees’ deliberate-indifference claims, too. The Sixth Circuit denied the petition for en banc review. The Sixth Circuit joins the Second, Seventh, and Ninth Circuits in applying Kingsley to deliberate -indifference claims.

Golf Village North, LLC v. City of Powell, 14 F.4^th 611 (6^th Cir. 2021)

Golf Village operates a planned-community development that sits on 11 acres. There are two commercial lots to which access is limited. Golf Village gave one of the lots to the city for a public park. This resulted in increased traffic around Golf Village’s development. The Sixth Circuit held that this was not a taking. Golf Village could build a gate at the entrance to its private street to ensure admission of invited guests only. The increased traffic outside of Golf Village’s development was a government activity outside of the development that had minimal effects within. Therefore, the Sixth Circuit held there was no taking.

Dahl v. Board of Trustees of Western Michigan University, 15 F.4^th 728 (6^th Cir. 2021)

The university requires COVID-19 vaccinations for its student-athletes. The university considers exemptions for medical or religious reasons on a discretionary basis. A group of students sued because the university ignored or denied their requests, thus barring them from participation. The district court stayed enforcement of the vaccination requirement. The Sixth Circuit declined to stay the injunction or proceedings in the district court pending appeal. The Sixth Circuit concluded that the free-exercise claim would likely prevail. The university did not penalize non-student-athletes who refused the vaccine based on religious reasons but it denied student-athletes the ability to participate in their sports when they exercised their sincerely held religious beliefs. Applying strict scrutiny, the Sixth Circuit held that the university did not show a compelling interest in denying the student-athletes their free-exercise rights or that it narrowly tailored its conduct to achieve that interest.

Crawford v. Tilley, 15 F.4^th 752 (6^th Cir. 2021)

Marc Crawford died at a Kentucky prison about one month after his arrest. His widow sued government employees and private companies for violating Marc’s Eighth Amendment rights. Included among the defendants was James Erwin, the Acting Commissioner for the Department of Corrections. Plaintiff believed Erwin was liable under a failure-to-supervise theory. The district court denied Erwin qualified immunity. On appeal, the Sixth Circuit reversed because the complaint did not allege active unconstitutional behavior by Erwin or how his actions caused Marc’s injuries.

Ackerman v. Washington, 16 F.4th 170 (6^th Cir. 2021)

In 2013, the Michigan Department of Corrections decided to stop allowing religious organizations to provide Kosher food items to inmates whose sincerely held religious beliefs required that they eat Kosher meat and one dairy product on certain holy days. Instead, everyone on a special diet for religious reasons would receive a vegan diet. The Sixth Circuit affirmed the district court’s judgment in favor of the prisoners. The MDOC policy completely prohibited exercise of this religious practice. The Sixth Circuit also pointed out that inmates’ failure to purchase these items at commissary did not undermine the sincerity of their religious beliefs.

F.P. Development LLC v. Charter Township of Canton, 16 F.4^th 198 (6^th Cir. 2021)

Canton passed an ordinance requiring permits for cutting down and removing certain trees. And once removed, the landowner had to replace the trees on its land or on someone else’s land. F.P. Development cut down trees on its property without getting a permit. The city investigated and sent F.P. a bill. F.P. sent the city a summons and complaint. The Sixth Circuit held that the ordinance was unconstitutional as a regulatory taking and an unconstitutional condition.

Sexton v. Cernuto, 18 F.4^th 177 (6^th Cir. 2021)

Sexton reported to the city to begin her five days with the work-release program. Cernuto and Dunn were supervisors. Against policy, Cernuto required that Sexton ride with Dunn. Dunn sexually assaulted Sexton. Dunn told Sexton that he and Cernuto did not tell on each other. Sexton reported the assaults to the Michigan State Police. After the criminal proceedings, Sexton sued, among others, Cernuto. Cernuto moved for summary judgment based on qualified immunity. The Sixth Circuit affirmed the district court. There were genuine issues of fact as to whether the limitations placed on Sexton’s movement created a special relationship creating a duty for Cernuto to protect her. Also, there was a genuine issue as to whether Cernuto facilitated the constitutional violation.

Browning v. Edmonson County, 18 F.4^th 516 (6^th Cir. 2021)

An attempt to make a traffic stop led to a high-speed pursuit. The car’s occupants were seen throwing items from the car. During the pursuit, a deputy reported finding ammunition where the objects had been thrown from the car. The driver made an abrupt turn, crashing into another car. Deputy Jones ordered one of the occupants to show his hands. The occupant did not comply because he was unconscious. The district court denied Jones qualified immunity and on interlocutory appeal the Sixth Circuit affirmed.

Hale v. Boyle County, 18 F.4^th 845 (6^th Cir. 2021)

Hale was being held in the Marion County jail ahead of her trial. Boyle County transported Hale between the counties when she had court appearances. During these trips Hale and Court Security Officer engaged in sexual acts. Pennington also provided Hale with special treatment, for example, allowing her to smoke, have snacks, etc. After Hale gave birth to her and Pennington’s child, she sued Pennington and others. The district court held that Hale’s consensual sex with Pennington deprived her of any constitutional claims. The Sixth Circuit reversed and held that the claim should be evaluated as excessive force. Based on Hale’s version, there were disputed issues of fact as to whether coercion was involved.

Elhady v. Six Unidentified CBP Agents, 18 F.4^th 880(6^th Cir. 2021)

On Elhady’s return to the U.S. from Canada, the border patrol held him in a room after taking his shoes, shirt, and pants. The room continued to get colder. After four hours, the agents let him leave. They called him an ambulance when he said he was too ill to drive. He filed a Bivens action against the Border Patrol agents. The Sixth Circuit reversed the district court’s finding that Elhady had stated a Bivens action. The Court rejected the district court’s attempt to extend Bivens to new actions.

Gordon v. Bierenga, 20 F.4^th 1077 (6^th Cir. 2021)

Bierenga attempted a traffic stop, but Gordon continued for several blocks. Eventually, Bierenga saw Gordon in the White Castle drive thru. Bierenga pulled his car in front of Gordon’s car and approached with his weapon drawn. Gordon began backing into the car behind him and hitting Bierenga’s car until he could get his car out. When he turned his wheels away from Bierenga, Bierenga fired four shots. The district court denied qualified immunity. The Sixth Circuit reversed, holding that the cases cited by Gordon lacked sufficient similarity to Bierenga’s situation to clearly establish that Bierenga had violated Gordon’s constitutional rights.

Greene v. Crawford County, 22 F.4^th 593 (6^th Cir. 2022)

After being booked into Crawford County’s jail, Greene began exhibiting signs of delirium tremens. The Sixth Circuit recognizes this as an objectively serious medical condition. County officials did not get Greene any medical help. The Sixth Circuit affirmed the district court’s denial of qualified immunity.

Wood v. Eubanks, 25 F.4^th 414 (6^th Cir. 2022)

Mr. Wood went to the fair wearing a shirt with the offending message printed on it. The deputies arrested him for wearing this shirt. As they were escorting him from the fairgrounds, he used his limited vocabulary to express his dislike of the fairgrounds administrator. The deputies then arrested him for disorderly conduct. The district court judge granted defendants’ summary judgment. The Sixth Circuit, however, reversed because the First Amendment protects even Mr. Wood.

Palma v. Johns, 27 F.4^th 419 (6^th Cir. 2022)

Deputy Johns went to the Palmas’ house in response to a domestic violence call. Johns knew the family was having a dispute over the T.V., and he knew that Palma had mental problems. Palma began approaching Johns, did not speak, and did not obey Johns’s commands. Johns used his taser twice, but to no avail. Johns continued to retreat and Palma continued to advance. Ultimately, Johns killed Palma. The Sixth Circuit reversed the district court’s grant of qualified immunity. The Court held there were sufficient facts for a jury to conclude that Johns used excessive force.

Wamer v. Univ. of Toledo, 27 F.4^th 461 (6^th Cir. 2022)

This is a Title IX case involving teacher-student harassment. The panel held that the “the standards for deliberate indifference to student-on-student harassment” set out in Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), do not apply to teacher-student sexual harassment.

In teacher-student harassment the plaintiff must allege that “(1) she was sexually harassed by a teacher or professor, (2) an official with authority to take corrective action had actual notice of the harassment, (3) the school’s response was clearly unreasonable, and (4) the school’s deliberate indifference caused her to suffer discrimination.”

To satisfy the causation requirement the plaintiff must show “that (1) following the school’s unreasonable response (2) (a) the plaintiff experienced an additional instance of harassment or (b) an objectively reasonable fear of further harassment caused the plaintiff to take specific reasonable actions to avoid harassment, which deprived the plaintiff of the educational opportunities available to other students.”

Moser v. Etowah Police Department, ___ F.4^th ____, 2022 WL 619830 (6^th Cir. 2022)

A mother arrived at a neighbor’s house to get her daughter who she thought had run away. Before understanding the circumstances, the mother put her hand on one of the officers. This prompted another officer to take the mother to the ground and kneel on her for about 23 seconds. The mother sustained injuries and sued the officer and his employer. The Sixth Circuit reversed the lower court’s order granting summary judgment. The mother had a clearly established right to be free from injury-threatening force when not actively resisting arrest. The mother’s touching of the officer’s arm was not sufficient to constitute resisting arrest.

Hyman v. Lewis, ___ F.4^th ____, 2022 WL 682543 (6^th Cir. 2022)

When Lipford entered the Detroit Detention Center, he denied having drugs and a search did not reveal any drugs. Lipford was put in a room where he could be seen. At some point he fell asleep and then slid onto the floor. Once the officers found him unresponsive, they took him to the hospital. At the hospital, the staff found cocaine, heroin, and fentanyl concealed in Lipford’s rectum. The drugs that leaked out, caused his death. The Sixth Circuit held that a reasonable officer in Lewis’s position would not have known that Lipford had drugs in his rectum. Lewis’s failure to follow internal policy was not sufficient to establish deliberate indifference.

Dale Conder is a member of the law firm Rainey, Kizer, Reviere & Bell, P.L.C., with offices in Memphis and Jackson, Tennessee. Mr. Conder is a resident in the firm’s Jackson, Tennessee office. He practices in the areas of general insurance defense, employment law, and defense of municipalities and their employees, particularly police officers in § 1983 litigation. Mr. Conder has published and lectured in the areas of trial practice, civil procedure and civil rights litigation. He is a member of DRI and the Tennessee Defense Lawyers Association.