NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0486n.06
No. 16-1781 FILED
Aug 22, 2017
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
SHANNON ROTH, )
)
Plaintiff – Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
MATTHEW VIVIANO, Hazel Park Police Officer, )
)
Defendant – Appellee. )
Before: BATCHELDER, ROGERS, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. In this § 1983 suit alleging excessive force,
deprivation of liberty without due process,1 and Michigan state-law claims of assault and battery,
the district court granted summary judgment on the federal claims on qualified immunity
grounds and declined to exercise supplemental jurisdiction over the state-law claims.
We AFFIRM.
I.
At about 3:00 AM on November 8, 2013, Plaintiff Shannon Roth suffered a seizure while
sleeping in the home she shared with her husband, Ralph Roth, Jr., and her son, Franklin
Laurence Saxton II. Roth and her husband were asleep when Roth “started shaking[.]” PID 82.
Awakened by his wife’s shaking, Ralph woke Saxton. Saxton observed his mother having a
seizure, made sure she was not choking on her tongue, and “rolled her over to her side[.]” Id.
1
Roth acknowledged in her response to Viviano’s motion for summary judgment that her due process
claim must be analyzed under the Fourth Amendment. PID 170.
No. 16-1781, Roth v. Viviano
Ralph “tried calling 911” but he “couldn’t figure it out” because he had trouble working his
phone. PID 82. Instead, he called the police department. EMTs were also notified.
Officer Viviano arrived first. Viviano testified on deposition that a police officer
generally accompanies an ambulance for calls to an individual home or residence within the city
of Hazel Park, “[j]ust in case the ambulance needs any assistance.” PID 116. Viviano has no
medical training aside from basic first aid.
Once in the Roths’ bedroom, Viviano asked several times if Roth was on any drugs.
Ralph responded that his wife did not do drugs, by which he meant she did not do illegal drugs.
Viviano also asked if Roth had ever had a drug problem and looked through the prescription
vials that were on her dresser. Viviano picked up Roth’s blood pressure medication, looked at it,
and asked Ralph if she was on any other medication. The paramedics arrived about five minutes
after Viviano.
Before the paramedics arrived, Ralph was on the bed holding Roth to keep her from
“banging her head or anything . . .” PID 83. The paramedics told him to stand up, and he did.
Ralph moved to the hallway outside the bedroom and Viviano then escorted him out of the
house.
The paramedics did not bring a stretcher into the house, leaving the stretcher at the
bottom of the steps on the porch. Ralph testified that the paramedics brought in no medical
equipment and did not check Roth’s vital signs. Saxton “was by [Shannon’s] side from the
beginning to the end.” PID 102.
In the meantime, Roth’s eyes remained open but she did not respond to the paramedics’
attempts to communicate with her. According to Saxton, Roth “was freaking out” and “didn’t
know what was going on.” Saxton acknowledged his mother was “fighting or resisting” when
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the paramedics attempted to pick her up. Because “she kept resisting,” the paramedics could not
carry her out, so Saxton carried her outside himself, ultimately setting Roth on the stretcher. She
“didn’t know what was going on” and kept screaming for her father, who is deceased.
Once Viviano, Saxton, and Ralph were outside the house, Ralph and Viviano had words
and Saxton had to hold his father back to keep him away from Viviano.
Both Ralph and Saxton testified that Roth fell off the stretcher several times, but also
testified that she was dropped several times. Viviano testified that he handcuffed Roth to the
stretcher and that he was not asked to do so by the EMTs. According to Saxton, Viviano
handcuffed Roth to the stretcher after she fell a second time; according to Ralph, Viviano
handcuffed her after the first fall, and she was already handcuffed when she fell off the stretcher
the second time. Saxton testified that Officer Viviano handcuffed Roth “[f]ace down on the
stretcher with her hands behind her back.” PID 103.
Viviano testified on deposition that he handcuffed Roth because she was resisting the
EMTs; he also testified that she was hostile, punched one responder, and spat at another one.
Saxton, who was with Roth throughout the incident, did not testify that he saw his mother punch
or spit at anyone, but he was not asked whether she had. Saxton’s affidavit reiterates that he was
with Roth throughout the incident and avers that he never saw her kick or spit on an EMT.
Although Viviano described Roth as “hostile” in his case report, his report did not
mention that she hit or spat at anyone. Viviano testified that he handcuffed one of Roth’s hands
to the railing of the stretcher because she kept trying to get off the stretcher. Eventually, other
personnel secured her to the stretcher using straps. Viviano testified that he kept Roth in a
handcuff in order to keep her from removing the straps. The handcuff was removed when Roth
arrived at the hospital.
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No. 16-1781, Roth v. Viviano
In the meantime, other police officers had arrived at the Roth home. An officer — not
Viviano — spoke to Ralph, who was “freaking out,” and told Ralph “if he didn’t relax, they were
going to take him to jail.” PID 103.
Only Saxton rode to the hospital in the ambulance with his mother. Roth remained
handcuffed throughout the trip. Saxton noted that no one checked her vitals. Saxton testified
that once the ambulance arrived at the hospital, Roth was taken in, and Saxton returned home.
Ralph followed the ambulance and was “still irate” when he arrived at the hospital and
again encountered Viviano. Viviano told Ralph that he needed to calm down and refused to let
Ralph into the hospital.
Roth asserts she suffered an injury to her wrist from the handcuffs, and bruises to her feet
from kicking the stretcher while she “was seizing.” PID 137. About a month after the incident,
Roth reported “shooting pain through [her] arm” that was so painful she could not sweep or
vacuum her floors. PID 135. Roth testified that, before this incident, she had no injuries to her
wrist. Medical records show that x-rays and a CAT scan revealed that Roth suffered ligament
damage to her wrist that may require surgery to repair.
II.
Viviano’s motion for summary judgment maintained that he was acting as a medical
responder, and that the right to be free from seizure by a medical provider was not clearly
established at the time of this incident.
The district court rejected Viviano’s argument that Plaintiff was unconscious and she thus
could not have been seized within the meaning of the Fourth Amendment: “the court cannot
conclude as a matter of law that Plaintiff, even though without question incoherent and
uncommunicative, was also ‘unconscious’ during the alleged seizure.” PID 282. However, the
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district court determined that, assuming Viviano seized Plaintiff, his actions were objectively
reasonable, since there “is no genuine issue of material fact about Plaintiff resisting the helping
efforts of the responders, or whether she posed a threat to, among others herself.” PID 285. The
district court additionally concluded that even if Viviano’s actions were unreasonable, he was
entitled to qualified immunity because “a right to be free from unintentional conduct by medical-
emergency responders under the Fourth Amendment is not clearly established.” Id.
Roth argues on appeal that the district court misinterpreted McKenna v. Edgell, 617 F.3d
432 (6th Cir. 2010), and that Viviano’s actions were not objectively reasonable.
A.
We determined in McKenna that “whether the officers were entitled to qualified
immunity depends on whether they acted in a law-enforcement capacity or in an emergency-
medical-response capacity when engaging in the conduct that McKenna claimed violated the
Fourth Amendment.” 617 F.3d at 439. In this case, if Viviano acted as a medical-emergency
responder, Roth’s claim would be that she “received dangerously negligent and invasive medical
care.” Id. at 440. Because there is no clearly established right to be free from such conduct, a
defendant acting as a medical-emergency responder would be entitled to qualified immunity
defense. The question whether an officer acted in a law enforcement or medical-response
capacity “is an objective inquiry” that depends on the officer’s actions — not his intent. Id.
In McKenna, the plaintiff’s fourteen-year-old daughter called 911 and said her father may
be having a seizure or choking. Two police officers were dispatched and arrived before
firefighter emergency personnel. What happened after the officers entered McKenna’s bedroom
was disputed. McKenna’s daughter testified that the officers instructed her father to get out of
bed and get dressed and that her father started to do so, but then sat back down. The officers
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No. 16-1781, Roth v. Viviano
then pulled McKenna up and told him to put his pants on; McKenna sat down again and told the
officers to stop. The officers continued trying to get McKenna out of bed and finally rolled him
over, pinned him on his stomach, and handcuffed his wrists behind his back and his ankles, at
which point McKenna began struggling. The officers’ testimony differed—they testified that
McKenna became aggressive and violent right after they tried to rouse him and that handcuffing
him was necessary because of his violent behavior. Like Roth, McKenna had no recollection of
the incident. After McKenna was taken to the hospital, the officers searched his dresser drawer
and medicine cabinet. Following a trial in 2008, the jury awarded McKenna $6,000 (medical)
and $275,000 (pain and suffering). The district court denied the defense’s jnov motion but
granted its motion for remittitur, reducing pain and suffering damages to $10,000. Id. at 437.
The officers appealed the district court’s denial of their two summary-judgment motions
and post-trial jnov motion—all on the qualified immunity issue. A divided panel of this court
affirmed:
[W]e must determine whether there existed any set of facts under which a
reasonable jury could have found that, objectively, the officers acted in a law-
enforcement capacity. We conduct that inquiry with respect to the two alleged
violations . . . the unreasonable seizure of McKenna’s person and the
unreasonable search of his home, and find sufficient evidence to support both.
We also hold that even if the question of the officers’ objective role is viewed as a
question for the judge and not the jury, qualified immunity still does not apply.
On the most plaintiff-friendly view of the facts that could have been found by the
jury, we too conclude that the officers acted in a law-enforcement capacity.
....
[W]hether the officers acted as law enforcement or as medical responders is an
objective inquiry . . . . It is not relevant, therefore, whether [the individual
defendant police officers] had a law-enforcement or a medical-response intent; the
focus must be on what role their actions reveal them to have played.
The issue is then whether this objective determination of the role that the officers
played at McKenna’s home is for the jury or for the court. We hold that it is
properly a jury question because “the legal question of immunity is completely
dependent upon which view of the disputed facts is accepted by the jury” . . . .
The objective character of what role the officers played depends on what actually
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No. 16-1781, Roth v. Viviano
happened . . . and on what a medical-emergency responder would have done
under the circumstances. The jury heard testimony on both of these factual issues
....
Like the district court, we fail to see how it serves any medical-
emergency-responder purpose to persist in insisting that a medically seizing
individual put on his pants. Questioning [McKenna’s daughter] about [his]
possible drug use, meanwhile, is equally suggestive of an inquiry into the cause of
McKenna’s medical condition and of an investigation into wrongdoing. It looks
more like the latter, however, given that the officer also asked [McKenna’s
daughter] about domestic violence. Even so, alone, these questions would make
for a very close case. They are more consistent with law-enforcement behavior,
however, when viewed against what happened next: the officers handled,
subdued, and handcuffed McKenna at the hands and feet without any sign of
violence on his part . . .
The search conduct is consistent with this law-enforcement posture. Under
ordinary circumstances, the officers’ search reasonably would be consistent with a
quest for clues about McKenna’s medical condition, information that would be
valuable to his treatment. But coming immediately after the officers handcuffed
McKenna without cause instead of letting the medical seizure run its course, the
search looks investigatory . . . .
Finally, after all of this, the officers ran a check on McKenna’s license plate ....
Certainly there is no self-evident medical-responder valence to such a search.
....
The record contained ample evidence to support the determination that the
officers unreasonably searched the home and seized McKenna . . . both actions
violated clearly established constitutional rights, and the denial of qualified
immunity was appropriate.
McKenna, 617 F.3d at 443–45.
B.
There are some similarities between the plaintiffs in McKenna and Roth. Both were
experiencing seizures when police arrived. 617 F.3d at 435. In both cases, officers asked about
the seizing individual’s drug use. Id. In McKenna, officers searched the house for drugs or
medications. 617 F.3d at 436. As the court noted in McKenna, a search for drugs or medications
when a responding officer suspects an overdose can be equally suggestive of a medical purpose
as of an investigatory one. Id. at 444.
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No. 16-1781, Roth v. Viviano
The different circumstances suggest that, at the least, the officers’ conduct in McKenna
more clearly served a law-enforcement purpose than Viviano’s interactions with Roth. First, a
jury could have found that the officers handcuffed McKenna before he became violent or
aggressive. McKenna, 617 F.3d at 444. In contrast, Saxton, Roth’s son, acknowledged that Roth
was “fighting or resisting” when the paramedics attempted to pick her up. On the other hand,
she was clearly suffering a seizure, and was not purposefully uncooperative. It was not until
Roth fell off the stretcher at least once that Officer Viviano handcuffed her to the stretcher’s
railing. Viviano maintained it was necessary to keep Roth handcuffed to the railing — even after
the responders secured her to the stretcher with the cross-body straps — so that she could not
undo the straps that kept her in place. However, the EMT responders never asked that Roth be
cuffed, and it is unclear how cuffing one hand to the stretcher, if that is indeed what Viviano did,
would prevent Roth from undoing the straps with her other hand if she was in fact able to move
her arms at all at that point.
Further, Saxton testified that Roth was placed on the stretcher face-down, with her hands
cuffed behind her, which contradicts Viviano’s testimony. Next, although Ralph and Saxton
testified that Viviano persisted in asking questions about Roth’s drug use, unlike the officers in
McKenna, nothing in the record suggests that Viviano searched the house for drugs after the
ambulance took Roth to the hospital or that he ran her plates.
This is a closer case than McKenna. First, McKenna showed no signs of violence before
officers restrained him, but Roth was resisting the paramedics’ attempts to help her. The
handcuffing arguably served a medical-treatment purpose by keeping Roth from loosening or
undoing the straps that held her to the stretcher so that she could safely ride by ambulance to the
hospital. On the other hand, the EMT responders did not ask that Roth be handcuffed; there is a
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No. 16-1781, Roth v. Viviano
dispute regarding how she was cuffed, and the rationale for keeping her cuffed after the straps
were secured is unclear.
Second, Viviano looked through Roth’s pills and inquired about potential drug use, which
the McKenna court noted could be suggestive of action by a medical responder or law
enforcement, but did not inquire about any other criminal activity. In contrast, the officers in
McKenna asked not only about drug use but also domestic violence — a line of questioning more
strongly indicative of an investigatory approach.
Lastly, Viviano looked through only the medications that were on top of Roth’s dresser;
he did not search through her dresser or medicine cabinet like the officers in McKenna did
Ralph’s description of the scene — that Viviano inspected one of the medications and asked if
she was on any other pills — suggests a medical purpose rather than an investigatory one.
Further, Viviano did not continue searching after Roth left in the ambulance unlike the officers in
McKenna. That he conducted his search shortly after arriving on the scene, ostensibly to
determine what medications she may have been taking, supports that he was acting as a medical
responder.
In light of the foregoing, we assume without deciding that there was a genuine issue of
disputed fact regarding whether Viviano was acting in a law-enforcement capacity or in an
emergency-medical-response capacity.
III.
The Fourth Amendment’s “objective reasonableness” standard guides the analysis for
claims of excessive force. Graham v. Connor, 490 U.S. 386, 386 (1989). In determining
whether a seizure is reasonable, the court balances “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing government interests at
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No. 16-1781, Roth v. Viviano
stake.” Id. at 396 (quotations omitted). Application of the standard “requires careful attention to
the facts and circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Id. The “objective
reasonableness” standard “contains a built-in measure of deference to the officer’s on-the-spot
judgment about the level of force necessary in light of the circumstances of the particular case.”
Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).
A.
The district court rejected Viviano’s argument that Roth was not subjected to a seizure
within the meaning of the Fourth Amendment because she was unconscious at the time of the
encounter. Viviano relied on Sixth Circuit precedent suggesting that an unconscious, non-
communicative plaintiff cannot allege a Fourth Amendment violation. Peete v. Metro Gov’t of
Nashville & Davidson Cty., 486 F.3d 217, 222 (6th Cir. 2007). The district court rejected this
argument because the record suggested that Roth was conscious even if she was not acting
coherently.
Nonetheless, the district court concluded that Viviano acted reasonably under the
circumstances because Roth posed a threat to herself by resisting attempts by others to provide
assistance during a medical emergency.
During the pendency of this appeal and after argument, we addressed the situation in
which the “objective reasonableness” standard of Graham, 490 U.S. 386, does not fit “because
the person in question has not committed a crime, is not resisting arrest, and is not directly
threatening the officer.” Estate of Hill by Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017).
“[W]e suggest that a more tailored set of factors [than Graham’s] be considered in the medical-
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No. 16-1781, Roth v. Viviano
emergency context, always aimed towards the ultimate goal of determining ‘whether the
officers’ actions are objectively reasonable in light of the facts and circumstances confronting
them.’” Id. (quoting Graham, 490 U.S. at 397). Accordingly, we held in Estate of Hill that a
three-part test applies to determine whether an officer in a medical-emergency situation is
entitled to qualified immunity:
(1) Was the person experiencing a medical emergency that rendered him
incapable of making a rational decision under circumstances that posed
an immediate threat of serious harm to himself or others?
(2) Was some degree of force reasonably necessary to ameliorate the
immediate threat?
(3) Was the force used more than reasonably necessary under the
circumstances (i.e., was it excessive)?
If the answers to the first two questions are “yes,” and the answer to the third
question is “no,” then the officer is entitled to qualified immunity. These
questions and answers serve as a guide to assist the court in resolving the ultimate
issue of “whether the officers’ actions are objectively reasonable in light of the
facts and circumstances confronting them.” [Graham, 490 U.S. at 397.] The
factors that we establish and apply today are, like the Graham factors, non-
exhaustive, Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir.
2007), and not necessarily dispositive in every case. Nonetheless, these additional
considerations aid the ultimate inquiry of “whether the totality of the
circumstances justified a particular sort of ... seizure,” Tennessee v. Garner,
471 U.S. 1, 8–9, 105 S. Ct. 1694, 85 L. Ed. 2d 1, (1985), and should be
considered and ruled upon by the court for claims of excessive force arising in
this context.
Estate of Hill, 853 F.3d at 314.
In the instant case, the answer to Estate of Hill’s first two questions is yes. The parties do
not dispute that Roth was experiencing a medical emergency and was incapable of rational
decision making due to her seizure. Nor do the parties dispute that some type of force was
necessary to prevent Roth from hurting herself, or others. Saxton acknowledged on deposition
that Roth was “fighting or resisting” when paramedics attempted to pick her up and, as a result,
they could not carry her out of the house. PID 102. After Saxton carried Roth out of the house,
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No. 16-1781, Roth v. Viviano
she fell off the stretcher twice. When asked why she fell, Saxton responded that, “she was
unaware of what was going on and was freaking out so she tried to fight [being put on the
stretcher]. She didn’t want to go.” PID 103. Viviano described Roth as hostile in his deposition
and in his case report. He testified that he handcuffed her to the stretcher’s handrail to prevent
her from removing the straps that kept her secured to the stretcher.
Roth argues that granting summary judgment was improper because there is an issue of
material fact whether she punched or kicked one responder and spat at another. Saxton, who was
within eyesight of his mother at all times, affirmed that he never saw her hit or spit at any
responder. In his deposition, Viviano reported that Roth punched one responder and spat at
another. However, even assuming that Roth did not punch or spit, and that if she did, it was
unintentional, it is still undisputed that Roth resisted attempts by the responders to provide
medical treatment. As discussed, Saxton testified that Roth was “fighting or resisting” during
attempts by responders to carry her out of the house, and that once outside the house, she
continued to resist their attempts to provide medical assistance.
Thus, as the district court determined, the dispute between Viviano and Saxton regarding
whether Roth hit or spat at the responders does not constitute a genuine issue of material fact
because their accounts of Roth’s overall response to the responders are consistent. Both agree
that she fought or resisted when responders attempted to provide her with medical treatment.
Regarding the third Estate of Hill question, whether the force used was reasonable, the
parties disagree whether the manner in which Roth was cuffed was reasonable. However, there
is no testimony or evidence that cuffing her in either manner was not reasonable. There is no
testimony from the EMT responders, for instance, that the straps would have adequately secured
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No. 16-1781, Roth v. Viviano
Roth had the cuff been removed, or that the cuffs interfered with Roth’s medical treatment or
were unnecessary to allow the EMTs to render aid.
Accordingly, on this record, the district court properly determined that Viviano’s actions
were objectively reasonable as a matter of law and, applying Estate of Hill, we must AFFIRM
the district court’s grant of summary judgment to Viviano on Roth’s Fourth Amendment claims
on the basis of qualified immunity.
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No. 16-1781, Roth v. Viviano
ALICE M. BATCHELDER, Circuit Judge, concurring in the result. I concur in the
result, but I write separately to explain that Officer Viviano is entitled to qualified immunity
because the facts, taken in the light most favorable to Plaintiff Shannon Roth, demonstrate that
he was acting as a medical responder and the right to be free of unreasonable seizure by a
medical responder was not clearly established at the time of this incident.
In my view, Roth has not shown that the facts in dispute are material to the issue of
whether Viviano acted as a medical responder or law enforcement officer. McKenna v. Edgell,
617 F.3d 432 (6th Cir. 2010), discusses several factors that help a court to differentiate a medical
responder from a law enforcement officer in these circumstances. Applying McKenna to the
Roth’s portrayal of the facts demonstrates that, although Roth takes umbrage at Viviano’s tone
and mannerisms, Viviano was acting as a medical responder. Roth has presented no evidence
that handcuffing a person, who is experiencing a seizure and presents a risk of harming herself,
facedown with her hands behind her back indicates that Viviano was acting as a law enforcement
officer rather than as a medical responder (however objectionable such conduct may seem in
these circumstances). Therefore, because Viviano was acting as a medical responder—and the
right to be free of unreasonable seizure by a medical responder was not clearly established at the
time of the incident—Viviano is entitled to qualified immunity.
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