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STATE OF MICHIGAN COURT OF APPEALS

JEFFREY MINOR, Plaintiff/Counter-DefendantAppellee, v CITY OF SYLVAN LAKE and MARK SILVER, Defendants-Appellants, and JEFFREY FICK, Defendant/Counter-PlaintiffAppellant, and OAKLAND COUNTY, Defendant-Appellee.

UNPUBLISHED June 28, 2012

No. 302166 Oakland Circuit Court LC No. 2010-109596-NO

Before: MURRAY, P.J., and WHITBECK and RIORDAN, JJ. PER CURIAM. Defendants City of Sylvan Lake, Sylvan Lake Chief of Police Mark Silver, and Sylvan Lake Police Officer Jeffrey Fick appeal as of right the trial court's order denying their second motion for summary disposition pursuant to MCR 2.116(C)(7) and (8).1 We affirm in part, reverse in part, and remand for further proceedings.

Defendant Oakland County was not a party to the second motion for summary disposition and has not filed a brief on appeal. Thus, the term "defendants" as used throughout this opinion does not include Oakland County, unless otherwise indicated.

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I. BACKGROUND Prior to the events that led to the filing of this appeal, in November 2007, plaintiff Jeffrey Minor testified for the plaintiff in Sherrod v Sylvan Lake, Oakland Circuit Court, Docket No. 2007-083982, a sexual harassment suit filed against Sylvan Lake and Silver. At his deposition, plaintiff testified that in 2003 and May 2007 Silver made lewd comments to plaintiff regarding plaintiff's genitals. The Sherrod case settled in April 2008. Thereafter, on March 28, 2009, plaintiff was at his home in Sylvan Lake doing yard work when his neighbor's dog, which plaintiff was watching, wandered onto the roadway. Plaintiff immediately called the dog back, but at the same time Fick exited his police vehicle and informed plaintiff that he was violating Sylvan Lake's leash law. Fick proceeded to arrest plaintiff and took him to the county jail. According to plaintiff, once Fick informed plaintiff that he was in violation of the city leash ordinance, Fick grabbed plaintiff by the arm and began pulling him towards his patrol vehicle. As Fick was pulling plaintiff to the vehicle, Fick refused to answer plaintiff's inquiries regarding why he was being arrested. At this point, plaintiff attempted to video his arrest with his cell phone, but, Fick grabbed the phone, handcuffed plaintiff, and then placed plaintiff in the back of the patrol vehicle after hitting plaintiff on the side of the head and on the back of his leg. Once other officers arrived at the scene, plaintiff was taken out of the patrol car, shoved onto the vehicle's trunk, patted down, and his handcuffs were tightened before he was placed back into the patrol vehicle and driven to the jail. Plaintiff remained in jail for two days before his arraignment, where he was charged with resisting an officer, MCL 750.81d(1), and disturbing the peace, MCL 750.170. Plaintiff alleges that while Fick was driving plaintiff to his arraignment, Fick stopped at the Sylvan Lake police station, where Silver looked into the patrol car and smiled at plaintiff. Thereafter, on June 8, 2009, Silver attended plaintiff's preliminary examination. Eventually, on November 16, 2009, the prosecution motioned to dismiss the criminal charges against plaintiff. The prosecution stated that it was requesting the dismissal because, although probable cause existed to bind plaintiff over, it could not meet its burden of proving the case beyond a reasonable doubt. Subsequently, in April 2010, plaintiff filed a complaint against Sylvan Lake, Silver, and Fick, alleging various state constitutional and tort claims. In response to plaintiff's complaint, defendants filed a motion for partial summary disposition pursuant to MCR 2.116(C)(7) and (8). In response to defendants' motion, the trial court permitted plaintiff to file an amended complaint. In his first amended complaint against defendants Sylvan Lake, Silver, Fick, Oakland County, and unknown Oakland County Deputy Sheriff(s), plaintiff alleged seven counts. In count I, plaintiff alleged a Fourth Amendment excessive force claim pursuant to 42 USC

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