Schreiber v. Moe

320 F. App'x 312
Court of Appeals for the Sixth Circuit·Decided November 5, 2008·No. 06-2414·Unpublished·Cited by 3 cases

Opinions

KENNEDY, Circuit Judge.

Plaintiff-Appellant James Schreiber appeals the district court’s order dismissing the remaining count of his complaint as a sanction for his counsel’s failure to file a pre-trial memorandum and to attend the final pre-trial conference. Schreiber also appeals the district court’s order granting partial summary judgment to Defendants Officer William Moe and the City of Grand Rapids on his claims of warrantless entry and excessive force brought under 42 U.S.C. § 1983. For the reasons set forth below, REVERSE the district court’s dismissal of Schreiber’s remaining excessive force claim, and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

The following statement of facts is taken from the district court’s opinion and order granting in part and denying in part Defendants’ motion for summary judgment:

On November 1, 2002 at approximately 3:39 p.m., the Grand Rapids Police Department emergency communications center received a 911 call from an anonymous caller reporting a domestic dispute between Schreiber and his 15-year-old daughter, Sarah.... The dispatch operator labeled the incident a “Priority 2.” The Grand Rapids Police [314] Department Manual of Procedures provides that a Priority 2 call involves the potential for physical harm against a person present at the scene. At approximately 3:46 p.m., Officer Moe was dispatched to the Schreiber’s home to check on the situation. While enroute he received a message from the dispatch operator explaining that it was a Priority 2 call involving the welfare of a 15-year-old girl and that an anonymous caller “thinks she is getting beat.” Exhibit D.
Schreiber does not dispute that, prior to Officer Moe’s arrival, he and his daughter were involved in a “heated” discussion. Schreiber Dep. at 17. The argument was the culmination of Sarah’s recent rebellious behavior. Schreiber acknowledges that during the argument, he took the phone away from Sarah and “threw it on the floor because she wouldn’t hang up.” Schreiber Dep. at 21. It is not clear from the record, but at some point prior to Officer Moe’s arrival, Sarah telephoned a social worker at Catholic Social Services, Cindy Musto. Musto explained that she spoke with Schreiber in an effort to calm him down, however, during their conversation, he continued to yell and threaten his daughter. Musto Dep. at 8-9, 12. Schreiber left the phone after hearing a knock at the door. Musto Dep. at 8.
The knock on the Schreiber’s door was Officer Moe. Officer Moe arrived at Sehreiber’s residence shortly after being dispatched to the location. Upon his arrival, Officer Moe heard screaming coming from the residence: “I could hear a male voice inside screaming profanities at an unknown person.” December 11, 2002 Preliminary Examination Transcript at 7-8 (“Prelim.Tr.”). When Officer Moe knocked on the apartment door, a young boy, James Schreiber Jr., opened the door. When the door opened, Officer Moe could see Schreiber screaming at someone but could not see the target of his invective. Prelim Tr. at 9. Officer Moe was also not able to see Sarah. According to Officer Moe, he asked Schreiber’s son if Sarah was okay, however, before the boy could answer, Schreiber came to the door, yelling profanities, and demanding to know why Officer Moe was there. Prelim. Tr. at 9, 11. Schreiber then profanely told Officer Moe that he was not permitted in the apartment. Schreiber Dep. at 25. Officer Moe informed him that he was going to check on Sarah’s welfare. Schreiber Dep. at 24. Despite Schreiber’s repeated, belligerent objection to the entry, Officer Moe entered the apartment because he “was deeply concerned that his (Schreiber’s) daughter was not okay and she may be injured and he may have assaulted her.” Prelim. Tr. at 13. Officer Moe conceded that Schreiber did not invite him into the home. Prelim. Tr. at 13.
After entering the residence, Officer Moe located Sarah in the living room and observed that she was crying and upset. Prelim. Tr. at 14, Schreiber Dep. at 29-30. Despite Officer Moe’s arrival, both Schreiber and his daughter continued to argue and curse at each other. Prelim Tr. at 14-15. Officer Moe described the situation as “chaos” and “basically a barrage of profanities” and threats between Schreiber and his daughter. Prelim. Tr. at 17-18. Schreiber also continued to yell at Officer Moe, calling him a “Neo Nazi” and “pig.” Schreiber Dep. at 31. He also continued to demand that Officer Moe leave his home or obtain a search warrant. Schreiber Dep. at 31. In light of the situation, Officer Moe requested immediate back up from an additional officer. Prelim. Tr. at 17.
[315] At some point during the early stages of the situation, Officer Moe talked to Musto on the telephone. Prelim. Tr. at 18, Schreiber Dep. at 30-31, Musto Dep. at 12-13. Officer Moe claims that Schreiber’s wife handed him the phone and indicated that Musto would explain the situation. Prelim. Tr. at 18. Schreiber does not dispute that Officer Moe spoke with Musto on the telephone. Musto identified herself and explained that she was concerned for Sarah’s safety. Musto Dep. at 13-14, Prelim. Tr. at 18. After suggesting that Sarah be taken to a teen shelter, Musto ended the phone call with Officer Moe. Musto Dep. at 13. Upon the arrival of Officer Matthew Veldman on the scene, Officer Moe attempted to run a file check on Schreiber and asked Schreiber’s wife if she had a personal protection order against him. During this time, Schreiber continued to yell at Officer Moe and demand that he leave. Schreiber Dep. at 31-32, 34, Prelim. Tr. at 21-22. Schreiber also asked if he could leave the living room to use the bathroom. Schreiber Dep. at 34. Officer Moe refused to allow Schreiber to leave the living room. Prelim. Tr. at 22, Schreiber Dep. at 34. According to Schreiber, Officer Moe said that he would not allow Schreiber to leave because he might have a gun in another room. Schreiber Dep. at 34. Schreiber also asserts that Officer Moe pushed him back onto the couch when he attempted to stand up and leave.
Although Officer Moe would not allow Schreiber to go to another room in the apartment, Schreiber did go outside on a second-story balcony to relieve himself. Schreiber Dep. at 34-35. When Schreiber exited the apartment onto the balcony, Officer Moe closed the sliding glass door behind him. Prelim. Tr. at 25. Schreiber maintains that Officer Moe locked the door and was laughing at him from inside the apartment. Schreiber Dep. at 34-35. Schreiber, however, concedes that he did not see Officer Moe lock the door. Schreiber Dep. at 37. Nevertheless, Schreiber became incensed, used more profanity, and demanded that Officer Moe open the door. Schreiber Dep. at 36. When Officer Moe did not open the door, Schreiber ripped off the screen door, grabbed a lawn chair and struck the glass door three times, causing the door to completely shatter into the apartment. Schreiber Dep. at 36.

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