Opinion
No. C2-00-494
July 17, 2002
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiffs' Motion for Partial Summary Judgment (Doc. #47) and Defendant's Motion for Summary Judgment (Doc. #56). Plaintiffs bring claims under 42 U.S.C. § 1983 based upon alleged violations of her rights secured under the Fourth Amendment to the United States Constitution and for violations of the common law of Ohio. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, the Court DENIES IN PART and GRANTS IN PART Plaintiffs' Motion and DENIES IN PART and GRANTS IN PART Defendant's Motion.
I. BACKGROUND
On August 25, 1999, Ameritech worker Ronald Wiseman parked his van in Plaintiff Carla Collin's driveway in order to work on a telephone box across the street. (Wiseman Dep. at 10, 49). After observing the van on her property, Mrs. Collin walked to the end of her driveway and asked Wiseman to leave. (Pl. Dep. at 38). Mrs. Collin claims that Wiseman refused to move the van after she requested he do so several times. (Pl. Dep. at 41-42). Wiseman, however, contends that he attempted to move the van soon after Mrs. Collin requested him to move it. (Wiseman Dep. at 16).
Mrs. Collin instructed her son to call the sheriff. (Pl. Dep. at 42). While waiting for the sheriff, Mrs. Collin stood at the end of her driveway between Wiseman's van and the road. (Id. at 47; Wiseman Dep. at 10-19).
Defendant Deputy Welker arrived and claims that he found Mrs. Collin on the edge of her driveway in front of Wiseman's van yelling to Wiseman that he could not leave. (Welker Dep. at 176-182). According to Welker, when he stepped out of his cruiser, Mrs. Collin continued to yell at Wiseman and began to waive her arms. (Welker Dep. at 181-184). Mrs. Collin, however, contends that she was just waiting at the edge of the driveway in order to talk with the responding police officer. (Pl. Dep. at 47).
Mrs. Collin told Deputy Welker that Wiseman had been trespassing and had failed to comply with her requests to leave. (Welker Dep. at 182, 185). Wiseman told Welker that although he tried to leave the property, he decided not to because he feared that he might hit Mrs. Collin. (Welker Dep. at 193; Wiseman Dep. at 21).
While Deputy Welker interviewed Wiseman and Mrs. Collin, her husband, Gary Collin, returned home. (Welker Dep. at 193-194). According to Wiseman, Gary Collin walked over to the driver's side of the van, stuck his head inside the vehicle, and told Wiseman that he was lucky that the sheriff was there. (Wiseman Dep. at 23). Gary Collin, on the other hand, claims that he walked over to the Ameritech van and asked him to turn the engine off and get out of the van because he feared that he was going to run over his wife. (Gary Collin Dep. at 19-22).
A second deputy, Gary Skelton, arrived on the scene at the request of Welker. (Skelton Dep. 6-7). According to Skelton, the Collins' and Welker were yelling and the situation was tense. (Id. at 12, 15-18). Deputy Welker then arrested Gary Collin. (Skelton depo. at 17-19). Gary Collin was frisked and the deputies found a gun clip on him. (Pl. Dep. at 71). Gary Collin was eventually charged with menacing. (Gary Collin Dep. at 63). This charge was subsequently dismissed. (Id. at 68). Skelton testifies that while Gary Collin was being arrested, Mrs. Collin alternated between screaming at Wiseman and sitting in front of the van. (Skelton Dep. at 5, 26). Soon after Gary Collin was taken to the cruiser, Mrs. Collin, who has asthma, sat in front Wiseman's van to "catch her breath." (Skelton Dep. at 5, 30; Pl. Dep. at 57-58).
Shortly thereafter, Mrs. Collins claims that she stood up to light a cigarette. (Pl. Dep. at 66). Because it was windy, she raised her hand to her face to block the breeze and light her cigarette. (Id.). Mrs. Collin claims that at that time Deputy Welker grabbed her arm, and lifted it up. Welker then, according to Collin, placed her arm behind her head and then behind her back. (Pl. Dep. at 66-67). She asserts that neither Welker nor Skelton said anything to her before making physical contact with her. (Id. at 70). She claims that she was walking with the deputy while being bent over and that the deputies threw her into the back seat of the police cruiser causing her to hit her head very hard. (Id. at 76). Collins also claims while she was being taken to the police cruiser, she screamed to Welker that he was hurting her arm. According to Mrs. Collins, Welker reacted by making the grip tighter. (Id. at 79). Mrs. Collin was charged with unlawful restraint. (Welker Dep. at 272). These charges were dropped due to the prosecutor's decision not to proceed to trial. (Plaintiffs' Motion for Partial Summary Judgment, Ex. B).
In contrast to Mrs. Collin's recollection of events, Deputy Welker claims that Mrs. Collin refused at least two requests to go to the cruiser and tried to sit down in front of the Ameritech van. (Welker Dep. at 273-275). Skelton lifted her up by her upper left arm while Welker, on the other hand, took hold of her right hand and forearm. (Pl. Dep. 67-76; Skelton Dep. at 36-37, 42-43; Welker Dep. at 275-277). Welker claims that when he reached for Mrs. Collin's arm, she moved her hands behind her back, attempting to avoid him. (Welker Dep. at 275-276). Welker proceeded to fold Mrs. Collin's right hand sharply at the wrist toward the palm side of her hand. (Id. at 278-281). This technique is called a "wrist lock," which is a joint manipulation maneuver designed to cause the suspect enough pain to obtain compliance with the officer's instructions. (Id. at 74-75). Continuing the pain compliance hold on Mrs. Collin, Welker and Skelton led her to the cruiser. (Id. at 283-284). Welker claims that as he walked Collin in to the cruiser, she began to struggle and attempted to break away from him and that he had to increase the pressure to her wrist. (Id. at 280-281). According to Welker, after he increased the pressure to her wrist, Mrs. Collin stopped struggling, and Lt. Welker and Deputy Skelton were able to walk her to the car. (Id. at 284).
On August 26, 1999, the day after the incident, Mrs. Collin sought treatment for pain that began in her wrist and moved to her hand. (Pl. Dep. Ex. B at 1). She was diagnosed with a sprain and her wrist was placed in splint. (Id.). Subsequently, Mrs. Collin began to develop numbness in the hand with tingling, discoloration, swelling, temperature sensitivity and tremor. (Id.). Also, she noticed arm pain and numbness throughout the right arm. (Id., Ex. D at 1). In addition, she developed sensitivity to touch and began holding her right arm in a characteristic defensive posture. (Id.). Mrs. Collin was referred to the Physical Medicine and Rehabilitation Department for nerve conduction and electromyogram ("EMG") studies, which were found to be normal. (Id., Ex. B at 1.). At that time a diagnosis of tenosynovitis, which is an inflammation of a tendon sheath, was suggested and diagnosis of an early development of post-traumatic regional pain syndrome was made. (Id.).
Post-traumatic regional pain syndrome I, also referred to as "reflex sympathetic dystrophy," involves a region of the body and is not in association with a single nerve distribution. This disorder can occur in the face of major or minor limb injury.
Mrs. Collin continued to experience pain and lessened mobility in her arm and sought treatment from several doctors, including Denise Cambier, M.D. of the Division of Epilepsy at the Department of Neurology of the Ohio State University, Michael Stanton-Hicks of the Cleveland Clinic Foundation, and John M. McGregor, of the Division of Neurological Surgery at the Ohio State University. Mrs. Collin currently still suffers from post-traumatic regional pain syndrome. She claims she cannot sleep for longer than two-hour periods at a time and suffers from constant pain. Two of her fingers are significantly bent and her arm has tremors.
On April 27, 2000, Plaintiffs filed this suit. Plaintiffs have moved for partial summary judgment, while Defendants in turn move for summary judgment.
II. STANDARD
The procedure for considering whether summary judgment is appropriate is set forth in Federal Rule of Civil Procedure 56(c), which provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Matsushita Electronic Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identifies a number of important principles in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a mere scintilla of evidence in order to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "show that there is some metaphysical doubt as to the material facts." Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
III. FEDERAL CLAIMS
Plaintiffs bring federal claims under 42 U.S.C. § 1983 ("Section 1983") for unreasonable seizure and excessive force in violation of the Fourth Amendment of the United States Constitution. Defendants claim qualified immunity under federal law with respect to both Section 1983 claims. Plaintiffs further claim violation of Section 1983 for failure to adequately train and supervise Deputy Welker.
A. Qualified Immunity
In civil suits for money damages, government officials acting in their official capacity and performing discretionary functions are generally shielded from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." McLaurin v. Morton, 48 F.3d 944, 947 (6th Cir. 1995) citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a claim of qualified immunity arises in the context of a motion for summary judgment, "we must first decide whether the plaintiff has stated a section 1983 claim against the individual defendants before addressing the qualified immunity question. . . . If [a plaintiff] has stated a claim, then we must examine whether summary judgment is warranted on the grounds of qualified immunity." Black v. Parke, 4 F.3d 442, 445-46 (6th Cir. 1993); Carlson v. Conklin, 813 F.2d 769, 771 (6th Cir. 1987). "Only if Plaintiff has a constitutional claim or there are questions of fact which, if resolved in her favor, establish a constitutional claim, do we need to reach the question of qualified immunity." McLaurin, 48 F.3d at 947, citing Black, 4 F.3d at 446-49.
"In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court delineated a two-part, sequential analysis for assessing whether a government official should be protected by qualified immunity." Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001). The Klein Court went on to explain that:
First, we must inquire whether, "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" . . . "If a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." In regard to the second part of the qualified immunity analysis, the Supreme Court has stated that "the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."275 F.3d at 550 (internal citations omitted).
Thus, in the instant case the Court first must determine whether Plaintiffs have stated a Section 1983 claim by showing a violation of a constitutionally-protected right. Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere. Tuttle v. Oklahoma City, 471 U.S. 808, 85 L.Ed.2d 791, 105 S.Ct. 2427 (1985). Section 1983 has two basic requirements: (1) state action that (2) deprived an individual of federal statutory or constitutional rights. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992). Defendants do not contest Plaintiffs claim that they were acting under color of state law. Thus, the issue becomes whether Mrs. Collin was deprived of her constitutional rights. Plaintiffs claim violations of the Fourth Amendment of the United States Constitution based on Deputy Welker's alleged wrongful arrest of Mrs. Collin and his alleged excessive use of force during said arrest.
Section 1983 provides:
Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . .42 U.S.C. § 1983.
1. Did Deputy Welker's Conduct Violate Mrs. Collin's Constitutionally-Protected Rights?
The Court first inquires whether, taken in the light most favorable Plaintiffs, the facts alleged show the officer's conduct violated a constitutional right.
a. Unreasonable Seizure
Both parties move for summary judgment in their favor on Plaintiffs' claim of unreasonable seizure, or wrongful arrest, in violation of the Fourth Amendment of the United States Constitution. First, the Court must determine whether Plaintiffs have alleged facts which, when viewed in the light most favorable to them, demonstrate that Defendants' conduct violated Mrs. Collin's right to be free from unreasonable seizure. Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001).
"A section 1983 wrongful arrest claimant must prove that the arresting officers lacked probable cause to believe that the suspect had committed the charged crime." Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir. 1997). Probable cause to make an arrest exists if, at the moment of the arrest, "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense." Klein, 275 F.3d at 550, citing Donovan v. Thames, 105 F.3d 291, 298 (6th Cir. 1997). Probable cause is assessed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)), and thus "probable cause determinations involve an examination of all facts and circumstances within an officer's knowledge at the time of an arrest." Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). "However, in general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible." Klein, 275 F.3d at 550 citing Gardenshire, 205 F.3d at 315.
In the case at bar, Mrs. Collin was arrested for unlawful restraint under Ohio law. Section 2905.03 of the Ohio Revised Code ("O.R.C.") provides:
(A) No person, without privilege to do so, shall knowingly restrain another of his liberty.
(B) Whoever violates this section is guilty of unlawful restraint, a misdemeanor of the third degree.
The highest Ohio Court to address the issue has established six criteria to determine whether certain conduct involves unlawful restrain including whether:
(1) The defendant's acts were willful.
(2) The conduct substantially interfered with another person's liberty.
(3) The victim knew of the restraint or was harmed as a result of the restraint.
(4) The restraint was total.
(5) Defendant exercised any force, or express or implied threat of force including a reasonable apprehension of force.
(6) Defendant acted without legal justification.
State v. Williams, 599 N.E.2d 377, 381 (8th Ohio App. Dist.) The court qualified its use of "substantial," stating that it "is used as an adjective to mean a `real' or `material' interference with the liberty of another as contrasted with a petty annoyance, or a slight inconvenience, or an imaginary conflict." Id. at 381 n. 1 (citations omitted).
Given the definition of unlawful restraint the Court concludes that there are issues of material fact as to whether Deputy Welker had probable cause to arrest Mrs. Collin for unlawful restraint. Application of the six criteria is fact-dependant. If the Court believes Plaintiffs' version of the facts, Mrs. Collin's positioning of herself between the road and Wiseman's van was not a "real" or "material" interference with the liberty of Wiseman and she did not exercise any force against Wiseman.
Similarly, if the Court believes Defendant's version of the facts, Wiseman's liberty was restrained. Deputy Welker believed that it was unsafe for Wiseman to get out of the van because of the agitated state of Mrs. Collin as well as the escalating tension of the situation. Deputy Welker observed Mrs. Collin with her arms outstretched in front of the van while she was yelling. Id. at 247-49. Welker arguably interpreted her conduct as evidence of force. Id. at 249.
Thus, the Court concludes that under Plaintiffs' version of the facts, for purposes of the qualified immunity defense, the Collins have established a violation of the constitutional right to be free from unreasonable seizure.
Defendants, however, allege that even if Deputy Welker did not have probable cause to arrest Mrs. Collin for unlawful restraint, there is proof of probable cause to arrest her for the related offense of complicity. O.R.C. § 2923.03(A)(2) and (F) provide that one who aids and abets another in committing an offense is guilty of the crime of complicity. State v. Bell, 48 Ohio St.2d 270, 278 (1976). Defendants argue that Mrs. Collin is responsible for her husband's concerted efforts to refrain Wiseman through his overt threats of force. Accordingly, Welker claims that there was probable cause to arrest Mrs. Collin for complicity and that is sufficient to satisfy probable cause requirement under a Section 1983 claim.
Defendants rely on Avery v. King, 110 F.3d 12 (6th Cir. 1997), for the proposition that Welker had probable cause to arrest Mrs. Collin for complicity, thus satisfying the probable cause defense to Plaintiffs' Section 1983 claim of unreasonable seizure. In Avery, the Sixth Circuit found that while the officer did not have probable cause to arrest the plaintiff for a particular offense, the officer did have probable cause to arrest on a sufficiently related offense and thus the defendants did not violate the plaintiffs constitutional right against unreasonable seizure. In this case, there is no testimony by Welker that he believed Gary Collin committed the crime of unlawful restraint, or that somehow Mrs. Collin aided and abetted him. Thus, the Court does not agree that these two offenses are sufficiently related.
Consequently, the next issue, discussed infra, is whether the constitutional right allegedly violated by Deputy Welker was clearly established.
b. Excessive Force
Both parties move for summary judgment on Plaintiffs' claim of excessive force in violation of the Fourth Amendment to the United States Constitution.
Where an excessive force claim arises in the context of an arrest or investigatory stop, it should be analyzed solely under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394-95, The determination of whether force used to effect a seizure was unreasonable "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."Ewolski v. City of Brunswick, 287 F.3d 492, 507-08 (6th Cir. 2002)citing Graham, 490 U.S. at 396. The test is objective; it asks whether a reasonable officer would conclude that the level of force used was appropriate. Graham, 490 U.S. at 396-97. That standard requires that the officer's use of force be objectively reasonable, balancing the cost to the individual against the government's interests in effecting the seizure. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002) citing Graham, 490 U.S. at 396. This 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. Id. The officer's subjective intentions are irrelevant to the Fourth Amendment inquiry.Graham, 490 U.S. at 397.
Deputy Welker claims that Carla Collin was agitated and uncooperative from the moment he arrived to her home on the day in question. The officer asserts that Mrs. Collin alternated between screaming at Wiseman and sitting in from of his van. He testified that he did not believe it was safe for Wisemen to exit the van. Welker contends that the situation continued to escalate. Mrs. Collin's agitated behavior led to the arrest of her husband and discovery of the empty gun clip in his pocket. Welker claims that it was at this time he informed Mrs. Collin she was under arrest for unlawful restraint and for her to move away from the van. Deputy Welker contends that only after he requested on two occasions that Mrs. Collin walk to his car did he reach for Mrs. Collin's arm to place her under arrest. He claims that Mrs. Collin attempted to avoid him by moving her arms away from him. It was at this time he argues that it was necessary to place Mrs. Collin in the wrist hold, in order to maneuver her to the police cruiser.
Mrs. Collin denies that she was screaming or flailing her arms when Deputy Welker arrived at her property. Instead, she claims she was standing in her driveway at the edge of her property waiting for the sheriff. When her husband arrived, Mrs. Collin admits that both of them were upset. Mrs. Collin denies resisting Welker when he hand-cuffed and arrested her. She claims that she started to have an asthma attack and sat down in her driveway, in front of the Ameritech van, to catch her breath. Mrs. Collin claims that at no time before this did Deputy Welker inform her she was being placed under arrest, or request that she accompany him to the police cruiser. Finally, Mrs. Collin claims that after Welker instituted the pain compliance hold, he walked her to the cruiser and threw her in the back seat causing her to hit her head.
Virtually every fact surrounding Plaintiffs' claim of excessive force is disputed. Where contested facts turn on credibility, the Sixth Circuit has concluded that it is impossible for a district court to make an objective determination at the summary judgment stage. Bass v. Robinson, 167 F.3d 1041, 1046 (6th Cir. 1999) (reversing the district court's grant of summary judgment in the defendant's favor on plaintiffs excessive force claim). The Bass Court reasoned that:
In Jackson v. Hoylman, 933 F.2d 401, 403 (6th Cir. 1991), this Court found that, where "the parties dispute virtually all of the essential facts surrounding the excessive force claim[,] . . . it is impossible to determine, without choosing between the parties' sharply different factual accounts, whether the force the officers used, objectively assessed, was reasonable." The Jackson Court further noted that under a rule 56 analysis, the facts are to be construed in the light most favorable to Plaintiff, and therefore held that summary judgment of the Plaintiffs claim alleging excessive force in violation of the Fourth Amendment was properly denied.
Likewise, in Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994), when confronted with conflicting facts surrounding a plaintiffs allegation of excessive force against the arresting police officers, this Court reversed the district court's decision granting the police officers summary judgment. In doing so, this Court stated as follows:
In the present case, plaintiff presented direct evidence in the form of witness Sanderford's and witness Clay's testimony, which contradicts the account of events provided by the police. For the purposes of a summary judgment motion, their accounts and all reasonable inferences drawn from it [sic] must be accepted as true. Thus, the district court erred in finding plaintiffs and the two witnesses' accounts implausible and in granting summary judgment where issue of credibility were determinative of the case at hand.Bass, 167 F.3d at 1046.
Similarly, in the case at bar, the essential facts surrounding Plaintiffs' excessive force claims are intensely disputed. If Plaintiffs' version of the facts are credited, she has established a violation of her constitutional rights to not be subjected to the use of excessive force by a law enforcement officer. The determination of these factual issues lies with the credibility of the parties in this case. Consequently, the Court concludes that there is a genuine issue of material fact as to whether Defendant used excessive force in violation of the Fourth Amendment. Thus, the next issue, discussed infra, is whether the constitutional right violated was clearly established.
2. Were the Rights Violated Clearly Established?
The Court next addresses whether, at the time in question the constitutional right asserted by Plaintiffs was clearly established. As to this requirement, the Saucier Court explained:
[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson "that the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." 483 U.S. at 640. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U.S. 603, 615 (1999) ("As we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established").Saucier, 533 U.S. at 201 (parallel citations omitted).
The Court must "look first to the decisions of the Supreme Court, and then to the case law of this circuit in determining whether the right claimed was clearly established when the action complained of occurred." Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958 (6th Cir. 2002) citing Black v. Parke, 4 F.3d 442, 445 (6th Cir. 1993) (quotations omitted).
In this case the Court also must look to the law of Ohio to determine if the right was clearly established. Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, n. 5 (6th Cir. 2002).
a. Unreasonable Seizure
Mrs. Collin was arrested for unlawful restraint. The O.R.C. and Ohio case law evidence that unlawful restraint is restraint of a person's liberty. Looking at the evidence in the light most favorable to Plaintiffs, it was only the van that was restrained — not Wiseman. The Court can find no case law in Ohio where it was found that the restraint of a vehicle in which there is no person, is an actual restraint of that person. It is well established in Ohio law that verbal commands are insufficient to support a claim of unlawful restraint. See Lester v. Albers Super Markets, Inc., 94 Ohio App. 313 (1st App. Dist. 1952); Monrean v. Higbee Dep't Stores, 2000 Ohio App. LEXIS 6217 (11th App. Dist. 2000). The Court concludes that the contours of the right to be free from unreasonable seizure for the alleged restraint in the factual situation of this case are sufficiently clear that no reasonable officer could have thought the alleged action of arresting Mrs. Collin for unlawful restraint, in light of her version of the facts, was lawful. Of course, if a jury credits Wiseman's version, a constitutional violation will not be established.
Accordingly, the Court concludes that the constitutional right to be free from unreasonable seizure in this particular situation was clearly established. Thus, summary judgment is DENIED to Plaintiffs and to Defendant on Plaintiffs' Section 1983 claim based on unreasonable seizure.
b. Excessive Force
Deputy Welker admits using a pain compliance hold on Mrs. Collin while arresting her for unlawful restraint. There is an issue of fact as to whether Defendant used unnecessary force on Mrs. Collin's wrist. In addition, if Plaintiffs' allegations are believed then Deputy Welker violently threw Mrs. Collin into the back seat of the police cruiser when she was hand-cuffed and not resisting. The unconstitutionality of use of gratuitous force against an incapacitated suspect during arrest is well established. Phelps v. Coy, 286 F.3d 295 (6th Cir. 2002). Thus, the Court concludes that the contours of the right to be free from excessive force for the alleged restraint in the factual situation of this case are sufficiently clear to a reasonable officer that the defense of qualified immunity is not available.
Accordingly, summary judgment in Defendants favor and in Plaintiffs favor is DENIED as to Plaintiffs' Section 1983 claim based on excessive force.
B. Motions for Summary Judgment on Unreasonable Seizure and Excessive Force
Plaintiffs and Defendants move for summary judgment on the claims for Unreasonable Seizure and Excessive Force. Those claims are summarized above. The versions of events described by Mrs. Collins and Deputy Welker are diametrically opposed, precluding summary judgment on either of the § 1983 claims. The Court finds that there are genuine issues of material fact as to both claims. The Motions for Summary Judgment on these claims are DENIED as to both Plaintiffs and Defendants.
C. Failure to Properly Train, Instruct, and Supervise
Plaintiffs claim violation of § 1983 for failure to properly train, instruct, and supervise Deputy Welker. Plaintiffs bring this claim against Sheriff Stephenson in his individual and his official capacities.
1. Failure to Train as to Sheriff Stephenson in his Official Capacity
"An official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity which that agent represents." Claybrook v. Birchwell, 199 F.3d 350, 355 n. 4 (6th Cir. 2000) citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). For the inadequacy of training policy to serve as the basis for § 1983 liability upon a political subdivision only where the failure to train amounts to deliberate indifference to the rights of the person with whom the police come into contact. Canton v. Harris, 489 U.S. 378, 388 (1989). The Harris Court stated that:
We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. . . . [A] municipality can be liable under § 1983 only where its policies are the "moving force [behind] the constitutional violation." Only where a municipality's failure to train its employees in a relevant respect evidences a "deliberate indifference" to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under § 1983.Id. at 388-89 (internal citations omitted).
The Harris Court went on the explain the rationale behind the deliberate indifference standard stating:
To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city "could have done" to prevent the unfortunate incident. See Oklahoma City v. Tuttle, 471 U.S., at 823 (opinion of Rehnquist, J.). Thus, permitting cases against cities for their "failure to train" employees to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities — a result we rejected in Monell, 436 U.S., at 693-694. It would also engage the federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism. Cf. Rizzo v. Goode, 423 U.S. 362, 378-380 (1976).Id. at 391-92
The Sixth Circuit more recently addressed the contours of a valid claim for deliberate indifference against a law enforcement agency for the failure to adequately train police officers. Brown v. Shaner, 172 F.3d 927, 931 (6th Cir. 1999) citing Harris, 489 U.S. at 390. "One is failure to provide adequate training in light of foreseeable consequences that could result from the lack of instruction. For example, the Court indicated that lack of instruction in the use of firearms or in the use of deadly force could constitute `deliberate indifference.'" Harris, 489 U.S. at 390. "A second type of situation justifying a conclusion of deliberate indifference is where the city fails to act in response to repeated complaints of constitutional violations by its officers." Id.
In the case at bar, Plaintiffs have produced no evidence indicating that the sheriffs department either on this occasion or in the past failed to investigate and discipline the use of excessive force by its police personnel where such discipline was justified. Thus, clearly the second type of situation justifying a conclusion of deliberate indifference is not at hand.
Plaintiffs do not assert that Deputy Welker was inadequately trained in the use of force. Instead, Plaintiffs make several claims about alleged deficiencies in the Sheriffs office, all of which were remedied at least two years before the injury at the root of this lawsuit. Plaintiffs offer no explanation as to why these cured deficiencies are relevant to their claim. Plaintiffs offer expert testimony from Larry Danaher, who has opined that the sheriff department's training policies were grossly inadequate.
Plaintiffs claim that until 1994, the Department had no policy on the use of force, that until 1997, the officers were not required to attend any use of force training, and, from 1977 until 1993, the Department provided its officers no hands-on training in use of force techniques. (Plaintiffs' Memorandum Contra, at 15-16).
The Court disagrees. The policies of the sheriffs department and the training that Deputy Welker received do not evidence a deliberate indifference to the rights of citizens. Virtually all Section 1983 plaintiffs can point to something the municipality might have done to prevent the incident. Yet this is not sufficient to satisfy the deliberate indifference standard. Deputy Welker received in-service training from the sheriffs department on use of force and wrist locks, the specific defensive technique he applied to Ms. Collin. (Welker Dep. at 84, 87, 109). The sheriffs department has provided training on use of force issues at least two or three times in the last two years, each time lasting about thirty minutes. (Id. at 128-130). Over a period of several months, Deputy Welker received in-house training on the "use of force continuum." (Id. at 126-28). Further, use of force was typically discussed at supervisor meeting. (Id. at 93-94). A formal written use of force policy was implemented by Sheriff Stephenson in approximately 1995. (Id. at 119-20). Also, it is the policy of the sheriffs department to require any officer who uses a self-defense technique on a person to file a use of force report. (Id. at 138). Officer Welker filed a report on the use of the wrist lock on Mrs. Collin as required by this policy. Appropriate departmental supervisors then reviews these reports to determine whether departmental rules, policies, or procedures were violated. (Id. at 144). Moreover, even if these training programs are not considered adequate, "the question" becomes whether such inadequate training can justifiably be said to represent "city policy." Harris, 489 U.S. at 390. In other words, the "municipality will actually have apolicy of not taking reasonable steps to train its employees." Id. (emphasis added). Neither Plaintiffs, nor their expert, alleges that such is the situation in the instant case.
The Court must look specifically to the municipalities policies. As Harris pointed out:
That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program. It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.Harris, 489 U.S. at 390-91 (citations omitted).
Thus, looking at all this evidence in the light most favorable to Plaintiffs, the Court cannot conclude that the alleged failure to train police officers amounted to a deliberate indifference to the rights of Muskingum County citizens. Accordingly, summary judgment is GRANTED to Defendants on Plaintiffs' failure to train and instruct claim against Sheriff Stephenson in his official capacity.
b. Failure to Train v. Sheriff Stephenson in his Individual Capacity
"Deliberate indifference" is also the standard applicable to failure to train claims against Sheriff Stephenson in his individual capacity. The test, however, is a subjective one, instead of the objective test set forth in Harris, supra. Farmer v. Brennan, 511 U.S. 825, 842 (1994). Thus, Plaintiffs must show that Sheriff Stephenson acted or failed to act despite his knowledge of a substantial risk of serious harm. Id.
In the case sub judice, it is evident that Stephenson was aware that failure to train in use of force could create a substantial risk of harm. When Stephenson became sheriff in 1997 he acted to improve the use of force training. Stephenson claims that he did not believe the voluntary training offered at that time was inadequate, but that the training needed improvement. (Stephenson Dep. at 11-14). Sheriff Stephenson implemented a policy on the use of force which required eight hours of classroom training per year. (Id. at 13-15, 23). The sheriffs undisputed attention to a use of force policy negates a claim that he was indifferent to a known risk. Thus, no reasonable jury could return a verdict in favor of Plaintiffs on this claim.
Accordingly, summary judgment is GRANTED to Defendants on Plaintiffs' failure to train claim against Sheriff Stephenson in his individual capacity.
2. Failure to Supervise
Plaintiffs claim that Sheriff Stephenson failed to adequately supervise Deputy Welker. As a supervisor, Stephenson "can be held liable under § 1983 only if he `encouraged the specific incident of misconduct or in some other way directly participated in it,' or `at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.'" Leary v. Daeschner, 228 F.3d 729, 740 (6th Cir. 2000) citing Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). "Merely having the right to control employees is not enough,see Monell v. Dept. of Social Servs., 436 U.S. 658 at 694, 56 L.Ed.2d 611, 98 S.Ct. 2018, nor is merely being aware of the misconduct, see Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)."Leary, 228 F.3d at 740.
In the case at bar, Plaintiffs do not allege, nor does the record reflect, that Sheriff Stephenson in any way encouraged or directly participated in Deputy Welker's arrest of Ms. Collin or that the sheriff authorized or knowingly approved of the conduct which resulted in Collin's injury. Consequently, Plaintiffs have failed to make a showing sufficient to establish the existence of an element essential to their case and on which they bear the burden of proof at trial.
Accordingly, summary judgment is GRANTED to Defendants on Plaintiffs' failure to supervise claim.
IV. STATE LAW CLAIMS
Plaintiffs bring claims under the common law of Ohio for false imprisonment, assault and battery, malicious prosecution, and loss of consortium. Defendants move for summary judgment on all Plaintiffs' claims except loss of consortium, which is a derivative claim. Plaintiffs move for summary judgment on their false arrest claim. The Court will initially address the issue of statutory immunity under the Ohio Revised Code ("O.R.C.") Chapter 2744.
A. Statutory Immunity
In Ohio a police officer is immune from liability in performing a governmental function unless the officer's "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." O.R.C. § 2744.03(A)(6)(b). There is no dispute that in effectuating the Mrs. Collin's arrest that Deputy Welker was engaged in a governmental function. O.R.C. § 2744.01(C)(2)(a). Thus, the Court must address whether Deputy Welker's actions in arresting Mrs. Collin were with malicious purpose, in bad faith, or in a wanton or reckless manner. Otherwise, a presumption of immunity exists with regard to employees of political subdivisions under Ohio law. A plaintiff faced with a motion for summary judgment must demonstrate that she possesses sufficient evidence to create a jury question as to whether the presumption has been rebutted. Cook v. City of Cincinnati, 103 Ohio App.3d 80, (1st App. Dist. 1995).
First, "malice" for the purposes of subsection (b) refers to a willful and intentional design to do injury, or the intention or desire to harm another, through conduct which is unlawful or unjustified. Piro v. Franklin Twp., 102 Ohio App.3d 130 (9th App. Dist. 1995). While malice may be inferred from a lack of probable cause, the term "malicious purpose" in subsection (b) implies more than a lack of probable cause.
Second, the term "bad faith" involves a dishonest purpose, conscious wrongdoing, the breach of a known duty through some ulterior motive or ill will, as in the nature of fraud, or actual intent to mislead or deceive another. Cook, 103 Ohio App.3d at 91.
Third, "wanton" misconduct is the failure to exercise any care whatsoever. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31 (1994). Mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeaser. Id. at 355. Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury. Roszman v. Sammett, 26 Ohio St.2d 94 (1971).
Finally, "reckless conduct" refers to an act done with knowledge or reason to know of facts that would lead a reasonable person to believe that the conduct creates an unnecessary and unreasonable risk of harm, and that this risk is substantially greater than that necessary to make the conduct negligent. Thompson v. McNeill, 53 Ohio St.3d 102 (1990).
Under § 2744.03(A)(6), the liability of a police officer does not depend solely upon whether his or her determination of probable cause or use of force is later found to be incorrect but also upon whether the officer acted "with malicious purpose, in bad faith, or in a wanton or reckless manner" in making that determination.
Based on the facts set forth above, the Court concludes that there are genuine issues of material fact as to whether the presumption of immunity has been rebutted. Looking at the facts in the light most favorable to Plaintiffs, a reasonable jury could conclude that Deputy Welker acted with malice or recklessness when he used the pain compliance hold while arresting Mrs. Collin on a third degree misdemeanor on her own property or when he arrested her for unlawful restraint because she was blocking the Ameritech van's exit from her driveway. Thus, summary judgment is DENIED to Defendants on the basis of statutory immunity under O.R.C. Chapter 2744.
B. False Arrest
Both parties move for summary judgment on Plaintiffs' false arrest claim. Under Ohio law, false arrest includes false imprisonment and depends on the existence of probable cause. Johari v. City of Columbus Police Dept., 186 F. Supp.2d 821, 833 (S.D. Ohio 2002) citing Tucker v. Kroger Co., 133 Ohio App.3d 140, 146 (1999). Since the Court concludedsupra, that there are issues of material fact as to whether Deputy Welker had probable cause to arrest Mrs. Collin for unlawful restraint, the Court necessarily concludes the same as to Plaintiffs' false arrest claim.
Accordingly, summary judgment is DENIED to Defendants and to Plaintiffs on this claim.
C. Assault and Battery
Defendants move for summary judgment on Plaintiffs' claim of assault and battery in violation of the common law of Ohio. Under Ohio law, battery is "an intentional unconsented-to contact with another," Snyder v. Turk, 90 Ohio App.3d 18, 23 (1993), while assault is the beginning of the act which, if consummated, would constitute battery. Matlock v. Ohio Dep't of Liquor Control, 77 Ohio Misc.2d 13, 18 (1996). In Ohio, an essential element of an assault and battery action is the intent to inflict personal injury upon another. Id. Thus, for an act to constitute battery, the actor must know that his act will bring about a harmful or offensive contact. Id. The Sixth Circuit has held, however, that a jury could find excessive force without finding a specific intent to inflict injury. Waggoner v. Mosti, 792 F.2d 595 (6th Cir. 1986).
In the case at bar, the Court concludes that there is a genuine issue of material fact regarding whether the Deputy Welker knew that his actions would bring about a harmful or offensive contact, although it seems most certain that Deputy Welker was aware that placing Mrs. Collin in a pain compliance hold would bring about such contact.
Accordingly, summary judgment is DENIED to Defendants on this claim.
D. Malicious Prosecution
Defendants move for summary judgment on Plaintiffs' claim of malicious prosecution in violation of the common law of Ohio. To state a cause of action for malicious prosecution in Ohio, a plaintiff must allege malicious institution of prior proceedings against him or her by the defendants, a lack of probable cause for filing the charges, termination of prior proceedings in plaintiffs favor, and seizure of plaintiffs person or property during course of the prior proceedings. Crawford v. Euclid Nat'l Bank, 19 Ohio St.3d 135 (1985). In a later case, Trussell v. General Motors Corp., (1990), 53 Ohio St.3d 142, 559 N.E.2d 732, the Ohio Supreme Court
In the instant case, the Court concludes that there are issues of material fact as to whether Defendant maliciously prosecuted Mrs. Collin. Because the Court has already concluded that there are factual issues as to the existence of probable cause, summary judgment in Defendant's favor is inappropriate.
Accordingly, summary judgment in Defendants favor is DENIED on this claim.
V. CONCLUSION
Based on the foregoing, Plaintiffs' Motion for Partial Summary Judgment is DENIED (Doc. #47) and Defendants' Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART (Doc. #56). Specifically, summary judgment in Defendants' favor on Plaintiffs' Section 1983 claims of unreasonable seizure and excessive force and Plaintiffs' state law claims is DENIED. Summary judgment in Defendants' favor on Plaintiffs' Section 1983 claims of failure to train and failure to supervise is GRANTED.