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STATE OF MICHIGAN COURT OF APPEALS

ERIKA CUMMINGS, Plaintiff/Appellee-Cross-Appellant, v SETH LEWIS, Defendant/Appellant-CrossAppellee, and ROGELIO GERARDO VILLARREAL and CITY OF FLINT, Defendant-Cross-Appellees.

UNPUBLISHED July 3, 2012

No. 303386 Genesee Circuit Court LC No. 09-092707-NO

Before: RONAYNE KRAUSE, P.J., and SAAD and BORRELLO, JJ. PER CURIAM. Defendant Seth Lewis1 appeals as of right an order that denied defendant summary disposition for claims of excessive force and assault and battery. Plaintiff, Erika Cummings, filed a cross-appeal alleging that the City of Flint is liable for failing to enforce its use-of-force policy for police officers. For the reasons set forth in this opinion, we affirm. Officers Lewis and Villarreal were on patrol when they saw two individuals on the ground, with one straddling the other. Kirkland Dean Rodgers had both hands on plaintiff's chest and appeared to be pushing her down. According to plaintiff, she was hugging Rodgers when they slipped and fell on the ice. The officers stopped to investigate and Lewis went to speak with plaintiff. Plaintiff and defendant provided two different versions of the events. Plaintiff claims that defendant grabbed her from behind and threw her against the house. He then kicked her legs out

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Defendant Rogelio Gerardo Villarreal was dismissed from the suit and is not involved in this appeal. Accordingly, the singular use of defendant in this opinion refers to Seth Lewis.

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from her and she fell to the ground. She stated that defendant had her on the ground, with one of her hands cuffed, when he proceeded to punch her in the face. This resulted in facial fractures and a swollen and bruised eye. However, defendant stated that plaintiff's face was already beaten and bruised when he arrived. While looking at plaintiff's injuries, defendant stated that plaintiff swung at his head with an open hand, and as he raised his arm to protect his head, she struck his wrist and shoulder. There was a struggle and plaintiff grabbed his portable-radio cord. At this point, Officer Villarreal came to assist and they were able to subdue plaintiff. Plaintiff pled no contest to one count of resisting arrest under a city ordinance. Subsequently, she filed a nine-count complaint against defendants. The trial court eventually dismissed all claims except the excessive force and assault and battery claims against Lewis. We review a trial court's decision on a motion for summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Defendants filed their motion under MCR 2.116(C)(7), (8), and (10), but the trial court did not state the rule it relied on to make its decision. "However, where, as here, the trial court considered material outside the pleadings, this Court will construe the motion as having been granted [or denied] pursuant to MCR 2.116(C)(10)." Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). When reviewing a motion pursuant to MCR 2.116(C)(10), summary disposition may be granted if the evidence establishes that "there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law." MCR 2.116(C)(10). All documentary evidence supporting a motion under (C)(10) must be viewed in a light most favorable to the nonmoving party. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 278; 769 NW2d 234 (2009). First, defendant argues that plaintiff's excessive force claim is barred under Heck v Humphrey, 512 US 477; 114 S Ct 2364; 129 L Ed 2d 383 (1994) because of plaintiff's no contest plea. We disagree. In Heck, the United States Supreme Court held, [W]hen a state prisoner seeks damages in a

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