Matt Brax v. City of Grand Rapids, Mich.

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0360n.06
No. 17-1749
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MATT BRAX,
Plaintiff-Appellant,
v.
CITY OF GRAND RAPIDS, MICH.; COUNTY OF
KENT, MICH.; MATT DZIACHAN; CHRIS
BERNARDO; KENT BERACY; BRADLEY
LYONS; STACY KUTSCHE; BECKY MCGINNIS;
NIKALUS SHERIDAN, in their individual and
official capacities,
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
BEFORE: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Matt Brax spent an evening drinking with
friends in Grand Rapids, MI. At their third bar of the night, a now-drunk Brax touched a woman
on her buttocks without her consent. After a bouncer ejected Brax from the bar, a Grand Rapids
police officer arrested Brax and took him to a Kent County, MI, correctional facility for the night.
Brax later sued, arguing that he was subjected to excessive force during the arrest, excessive force
in a booking room at the correctional facility, and unconstitutional conditions of confinement. The
district court granted summary judgment to all defendants, and we AFFIRM.

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No. 17-1749
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I.
Plaintiff-Appellant Matt Brax was a then-twenty-five-year-old resident of Hoffman
Estates, a suburb of Chicago, IL. Defendants-Appellees are the City of Grand Rapids, MI; the
County of Kent, MI; three Grand Rapids police officers, Kent Beracy, Chris Bernardo, and Nikalus
Sheridan; and four Kent County correctional officers, Matt Dziachan, Bradley Lyons, Becky
McGinnis, and Stacy Kutsche.
The incidents underlying Brax’s claims occurred on the night of December 7, 2013. The
parties tell different stories of what happened that night, but because the district court granted
summary judgment to all defendants, the following facts are drawn entirely from Brax’s complaint,
Brax’s deposition testimony, and video and audio files from that night.
A.
On the evening in question, Brax traveled from the Chicago area with a group of friends to
Grand Rapids, MI. At dinner, Brax drank two beers. Afterwards, the friends went to a bar, where
Brax drank one or two beers and “a shot.” At the next bar, Brax “may have had a beer.” Finally,
the friends went to the Tavern On The Square, where Brax drank more beer for the next “couple
of hours.” All told, Brax drank as many as ten beers and a shot.
Brax headed to the restroom of the Tavern to “take a number two.” The restroom was
messy, so Brax decided he would use the restroom at the next bar. But he never made it to the
next bar. After leaving the restroom, Brax “saw some girl that was smiling to [him]” and “tapped
her with the back of [his] hand on the butt to say hi.”
A bouncer ejected Brax from the Tavern, and according to Brax, on their way outside, the
bouncer punched him in the mouth. A photograph taken later that night shows injuries to Brax’s
mouth, and Brax later testified that he received those injuries from the bouncer.

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Once Brax was outside the bar, Defendant-Appellant Beracy, a Grand Rapids police
officer, arrested him. As Brax tells the story, he was standing outside the Tavern when Beracy
grabbed him from behind and tried to tackle him. Brax then “spun around and threw the person to
the ground,” using a “spin move” that included pushing Beracy to the ground. Brax testified that
Beracy had not yet identified himself as a police officer, and that Brax did not realize Beracy was
a police officer until after Brax had pushed him to the ground. Once he realized that Beracy was
a police officer, Brax testified, he “put [his] hands in the air immediately to show that [he] was . . .
submissive,” but “the officer got up, charged at [him] and punched [him] in the face right in the
eye.” Beracy then took Brax to the ground, put his knee in Brax’s back, and handcuffed him.
During this process, Brax defecated on himself.
B.
After arresting Brax, Beracy took him to the Kent County Correctional Facility (“KCCF”).
On the way, Beracy briefly stopped at a Grand Rapids police facility where a police officer took a
photo of Brax’s face. During the ride to the KCCF, Brax boasted that he was a “professional
fighter” and bragged about how he “could’ve beat the s--- out of all you guys,” how he “really
wanted to,” and how “lucky” they were that he did not do so.]
When Beracy and Brax arrived at the KCCF, Beracy walked Brax into a booking room,
where two other officers stood around a table. Brax identifies them as Defendants-Appellants
Bernardo and Sheridan, both Grand Rapids police officers. The events in the booking room are
captured on video. Brax stood handcuffed at one end of the table, while the three officers stood
around the other end of the table, going through Brax’s belongings. One officer appeared to count
cash and, as he finished, to say something to Brax. Brax walked towards the officer, but once they
were within arm’s reach, the officer stiff-armed him and then forced him onto the booking table,

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No. 17-1749
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with assistance from the other officers. Over approximately the next two minutes, the three
officers, along with some KCCF officers who joined them, held Brax down on the table. Brax was
not entirely cooperative, and unsuccessfully tried at least once to force his way up. Brax claims
that during his time at the booking table, the officers choked him “in and out of consciousness”
using a “rape choke.”
Eventually, Brax did force his way up, and five officers tussled him to the ground. For
approximately the next ninety seconds, the officers held Brax down while they tried to secure his
feet. Two officers knelt on Brax’s arms or back during this time, and one officer lay on top of his
head and neck area. Throughout this time, Brax continued to struggle with the officers, and at
some point during this encounter, Brax defecated on himself a second time.
C.
Once the officers finally restrained Brax, several officers—whom Brax identifies as KCCF
officers—carried him to a holding cell. In the holding cell, the officers removed Brax’s leg
restraints, but left him handcuffed. The officers then left the cell. Shortly afterwards, Brax kicked
the glass portion of the holding cell once or twice. He then took off his pants, wiped himself with
them, and then wiped the cell window with them. Brax then sat on a bench in the cell, getting up
at least one additional time to kick the glass portion of the door. He admitted to yelling and
screaming and cursing at the officers while he was in the holding cell. At some point, he asked
for clothing, which the officers did not immediately provide. Later, although Brax could not
remember when, the officers gave him a jumpsuit, but denied him a shower at that point. “The
next morning,” Brax showered, and after he slept “for an hour,” the KCCF officers gave him back
his clothes and told him to leave.

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D.
In November 2015, Brax filed this suit under 42 U.S.C. § 1983. In his complaint, Brax
alleged that Officer Beracy used excessive force while arresting him and that the officers used
excessive force in the booking room.1 In December 2016, the defendants filed motions for
summary judgment. In response to those motions, Brax also argued that the KCCF officers
subjected him to unconstitutional conditions of confinement. The district court granted summary
judgment to all the defendants on all of Brax’s claims. Brax appealed.
II.
We review de novo the district court’s grant of summary judgment, viewing the facts in
the light most favorable to the nonmoving party. Grden v. Leikin Ingber & Winters PC, 643 F.3d
169, 171 (6th Cir. 2011). Summary judgment is appropriate where “the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In determining this, district courts must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party. Martin v. Cincinnati Gas & Elec. Co., 561
F.3d 439, 443 (6th Cir. 2009). The nonmovant must present “specific facts showing that there is
a genuine issue for trial,” and a “scintilla of evidence” will not suffice. Id. (citations omitted).
In qualified-immunity cases, this usually means adopting the plaintiff’s version of the facts.
Scott v. Harris, 550 U.S. 372, 378 (2007). But “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380. Record evidence that can displace the nonmovant’s version of the facts
1 Brax also initially brought Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), municipal-liability claims against
the City of Grand Rapids and the County of Kent, but later conceded that these were meritless. The district court
dismissed Brax’s claims against both municipalities, and Brax does not challenge that dismissal. We therefore review
only Brax’s claims against the individual defendants.

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includes videos, id. at 381, and photographs, Womack v. Wal-Mart Stores, Inc., 677 F. App’x 296,
297–98 (6th Cir. 2017) (per curiam).
A.
The Fourth Amendment “guarantees citizens the right ‘to be secure in their persons . . .
against unreasonable . . . seizures.’” Graham v. Connor, 490 U.S. 386, 394 (1989) (alteration in
original) (quoting U.S. Const. amend. IV)). We analyze claims that police officers used excessive
force during an arrest under the Fourth Amendment’s “reasonableness” standard. Id. at 395 This
standard is objective, and the officers’ “underlying intent or motivation” is immaterial. Id. at 397.
In applying this standard, we look at the totality of the circumstances, including the severity of the
crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others,
and whether the suspect was actively resisting arrest. Id. at 396.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “‘Not every
push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates
the Fourth Amendment.” Id. (citation omitted). In reviewing the reasonableness of a police
officer’s conduct, we must “allow[] for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Id. at 396–97. We give a “measure of
deference to the officer’s on-the-spot judgment about the level of force necessary,” and this
measure of deference “carries great weight when all parties agree that the events in question
happened very quickly, as here.” Davenport v. Causey, 521 F.3d 544, 552 (6th Cir. 2008) (internal
quotation marks and citations omitted).

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No. 17-1749
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Brax argues that Beracy used excessive force in arresting him. On Brax’s version of the
facts, after Brax did his “spin move” and threw Beracy to the ground, Beracy got up, charged at
him, and punched him once in the eye before taking him to the ground and arresting him. Even
accepting Brax’s version of the facts as true, Beracy did not use excessive force when arresting
him. Beracy observed a commotion outside the Tavern, and as he approached, a woman told him
he “need[ed] to do something” because “there was a man in there punching everybody.” Upon
Beracy’s initiating contact with him, Brax did a “spin move” and threw Beracy to the ground.
Only after this did Beracy purportedly punch Brax, and—by Brax’s own account—only once.
Applying the Graham factors and viewing the incident from the perspective of a reasonable officer
at the scene, we conclude that a single punch in these circumstances was not unreasonable.
Although the crime Beracy was responding to was not especially serious—“drunk and disorderly”
conduct, as the district court put it—a drunk Brax physically resisted Beracy’s initial attempt to
arrest him, using a “spin move” and throwing Beracy to the ground. “Drunk persons are generally
unpredictable” and “heavy intoxication create[s] a more volatile situation,” Marvin v. City of
Taylor, 509 F.3d 234, 246 (6th Cir. 2007), and we have before upheld as reasonable an application
of force that allegedly broke a seventy-eight-year-old man’s arm where that man was “very drunk”
and arguably only passively resisting arrest, id. at 238, 245–48. Here, by contrast, the force Beracy
exercised inflicted far less significant—if any—damage, Brax was much younger and stronger
than the arrestee in Marvin, and Brax was actively resisting arrest. In light of the tense, uncertain,
and rapidly evolving circumstances that Beracy faced, we cannot say that his split-second
judgment that a single punch was necessary to subdue a drunk, strong, and resisting young Brax
was unreasonable.

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But where a party’s version of the facts is “blatantly contradicted” by the record, we do not
accept that version of the facts, see Harris, 550 U.S. at 380, and after reviewing the photo of Brax’s
face from that night, we have our doubts whether Beracy punched Brax at all. The only visible
damage is to Brax’s mouth, where Brax says the bouncer, not Beracy, punched him. There is no
visible damage whatsoever to Brax’s eye. This confirms our conclusion that Beracy did not use
excessive force when arresting Brax.
The Supreme Court’s and our “Fourth Amendment jurisprudence has long recognized that
the right to make an arrest . . . necessarily carries with it the right to use some degree of physical
coercion . . . to effect it.” Graham, 490 U.S. at 396; Rodriguez v. Passinault, 637 F.3d 675, 688
(6th Cir. 2011) (citation omitted). Beracy was entitled to use some force to arrest Brax, and
whatever force Beracy used under these circumstances was not excessive.
B.
Brax next argues that the officers used excessive force in the booking room at the KCCF.
Specifically, he testified that the officers choked him “in and out of consciousness with a rape
choke” during the tussle at the booking table. Although Brax equivocated about whether he was
ever medically unconscious—“consciousness is a philosophical term in my perspective”—he was
not equivocal about how the alleged choke happened. According to Brax, a “rape choke” is a
“very dangerous” “choke that is expressly forbidden in the martial arts world.” This choke is
accomplished by a person putting his “hand around [your] carotid arteries” with his thumb on “the
other side of your Adam’s Apple” and “press[ing] on both sides of [your] carotid arteries.” “Rape
chokes” are “meant to block off the circulation of the brain to either suffocate you or kill you or
rape you.”

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Brax’s insistence that the officers used a “rape choke” on him while they were at the
booking table is fatal to his claim. Where a plaintiff’s version of the facts is “blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Harris, 550 U.S. at 380.
Video from the booking room blatantly contradicts Brax’s claim that the officers “rape choke[d]”
him. Although the video shows that the officers several times placed their open hands on Brax’s
head or the back of his neck to force him onto the booking table, no officer grabbed Brax’s throat
in the manner Brax described. And contrary to Brax’s claim that he went in and out of
consciousness, the video shows Brax moving around and unsuccessfully attempting to force his
way up off the table at least once before succeeding in doing so, despite multiple officers’
attempting to hold Brax down, all within a two-minute span.
To the extent that Brax alleges that the officers used other forms of excessive force during
the tussle at the booking table or the tussle on the floor, we reject that claim as well. Fourth
Amendment protections against excessive force “extend through police booking,” and “assaults
on subdued, restrained[,] and nonresisting detainees, arrestees, or convicted prisoners are
impermissible.” Coley v. Lucas Cty., 799 F.3d 530, 537, 540 (6th Cir. 2015). But the video clearly
shows that throughout the incident in the booking room, Brax was never subdued, fully restrained,
and nonresisting and the force the officers used to subdue and restrain him was not objectively
unreasonable.
C.
Brax finally argues that the KCCF officers subjected him to unconstitutional conditions of
confinement by not immediately giving him clean clothes and a shower despite knowing that he
had defecated on himself twice that evening. But Brax did not raise a conditions-of-confinement

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claim in his complaint. The first mention of this claim appeared in Brax’s brief in response to the
defendants’ summary-judgment motions, and a plaintiff “may not raise a new legal claim for the
first time in response to the opposing party’s summary judgment motion.” Tucker v. Union of
Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005) (citation omitted). Where
a plaintiff attempts to do so, we do not consider that claim on appeal. Traster v. Ohio N. Univ.,
685 F. App’x 405, 407 (6th Cir. 2017) (citing Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d
394, 400 (6th Cir. 2007)).
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.

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