Bryan Frodge, et al v. City of Newport, et al

Filing

OPINION filed : The district court's order granting summary judgment on all of Plaintiffs' federal claims and dismissing Plaintiffs' state law claims is AFFIRMED, decision not for publication pursuant to local rule 206. Danny J. Boggs, Circuit Judge; R. Guy Cole , Jr., Circuit Judge and Solomon Oliver , Jr., Chief District Judge, Authoring.

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1056n.06
No. 11-5458

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBORAH S. HUNT, Clerk

BRYAN FRODGE, TARYN PENCE,
Plaintiffs-Appellants,
v.
CITY OF NEWPORT, CITY OF NEWPORT
POLICE DEPARTMENT, CHIEF ROBBIE K.
HALL, LIEUTENANT PAUL MORGAN,
CORPORAL KUNKEL, CORPORAL GENE
SIMMONS,
Defendants-Appellees.

)
)
)
)
)
)
)
)
)
)
)
)
)

Oct 05, 2012

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
OPINION

BEFORE: BOGGS and COLE, Circuit Judges; and OLIVER, District Judge.*
SOLOMON OLIVER, JR., Chief District Judge. Plaintiffs-Appellants, Bryan Frodge
(“Frodge”) and Taryn Pence (“Pence”) (collectively, “Plaintiffs”), brought the instant case against
Defendants-Appellees, the City of Newport (the “City”), the City of Newport Police Department,
Robbie K. Hall (“Hall”), individually and in his official capacity as the Chief of Newport Police,
Paul Morgan (“Morgan”), individually and in his official capacity as a Lieutenant for the City,
Corporal Kunkel (“Kunkel”), individually and in his official capacity as Police Corporal for the City,
and Corporal Greg Simmons (“Simmons”), individually and in his official capacity as Police Officer
for the City (collectively, the “Defendants”). Plaintiffs appeal the order of the district court granting

*

The Honorable Solomon Oliver, Jr., Chief Judge of the United States District Court for the
Northern District of Ohio, sitting by designation.

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 2

summary judgment on Plaintiffs’ federal claims against Simmons for false arrest and excessive use
of force under 42 U.S.C. § 1983 and Plaintiffs’ federal claims against the City, the City Police
Department, Hall, Morgan, and Kunkel for supervisory and municipal liability under § 1983, and
dismissing Plaintiffs’ state law claims for battery, negligence, and malicious prosecution against
Simmons. For the following reasons, we AFFIRM the decision of the district court.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
On Saturday, May 31, 2009, Plaintiffs spent the evening with friends, celebrating Pence’s
birthday. After dinner, the group went to the Riverside Marina, where Frodge had three beers.
Thereafter, Plaintiffs began their drive home. Pence was driving her new Mustang, with her
windows rolled down.
During this drive, Plaintiffs heard a siren and Pence pulled her vehicle to the right, allowing
an ambulance to pass. When Pence was about to pull back into her original lane of travel, a white
vehicle drove past at a high rate of speed, narrowly missing Pence’s vehicle. Pence honked her horn
at the vehicle and continued driving. Eventually, the vehicle that sped past Plaintiffs slowed down,
and Pence got into the left lane to pass it. Once the vehicles were next to each other, the other
vehicle stayed even with Pence’s vehicle long enough for its rear passenger, later identified as Robert
Burbrink (“Burbrink”), to scream and curse at Plaintiffs. Burbrink also stuck both of his middle
fingers up at Plaintiffs, “flipping [them] off.” Plaintiffs responded by flipping off Burbrink. Once
Pence was ahead of the white vehicle, she switched back into the right lane so that the white vehicle
was behind her. She continued driving a short distance until she reached a stoplight at Third and
Saratoga Streets, in front of Newport on the Levee. Because it was a Saturday night in the summer
2

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 3

by Newport on the Levee, where there are a number of restaurants, bars, and other entertainment
venues, there were a number of people and vehicles in the area.
While Plaintiffs and Burbrink were stopped at the stoplight, Burbrink got out of the white
vehicle and approached the passenger side of Pence’s Mustang, Frodge’s side. Burbrink was
“cussing [and] yelling a bunch of profanities” at Frodge, ordering him to get out of the car. Frodge
told Burbrink that he was a police officer, that Burbrink was supposed to yield to an ambulance, and
that he needed to get back into the white vehicle. Burbrink continued to try to get Frodge out of the
vehicle, threatening to “slice [Frodge] from ear to ear” and grabbing Frodge’s arm through the open
window of Pence’s car. However, Frodge remained in the vehicle. Burbrink then kicked the side
of Pence’s vehicle, stating, “this will get you out of the [vehicle].”
The next events occurred over approximately thirty seconds and primarily occurred in the
street. After Burbrink kicked Pence’s car, Frodge got out of the car, fearing that Burbrink may have
a knife. Burbrink proceeded to immediately run at Frodge and kick him in the groin. When Frodge
leaned down, Burbrink tried to kick him in the head, but the blow landed on Frodge’s right shoulder
instead. After witnessing this, Pence got out of the car. Burbrink came at Frodge again, but Frodge
hit him first. When Burbrink fell back, he landed on Pence’s shin/ankle. Pence told him to get off
of her and kicked him off of her shin/ankle.
The fight caught the attention of two Newport police officers, Patrolman Bruce Markus
(“Markus”) and Simmons, who were working an extra-duty security detail, in full police uniform,
at the Hofbrahaus Restaurant across the street. They were working in the restaurant’s outdoor beer
garden when they noticed several bar patrons looking at something across the street. The officers
observed Frodge and Burbrink fighting on East Third Street. Simmons testified that the first thing
3

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 4

he saw was two men “grabbing, grappling and swinging at each other.” Markus testified that the first
thing he saw was “fists flying, pushing and shoving and fist throwing.” Upon observing this,
Simmons and Markus raced across the street. Simmons pulled out his ASP baton, extended it as
he approached, and yelled at Burbrink and Frodge to “knock it off.” Neither Simmons nor Markus
identified themselves as police officers, but they were in full uniform. Simmons observed Burbrink
and Frodge continue to struggle and fall to the ground before the officers reached them. Simmons
also saw Pence kicking one of the men. By this time, the white vehicle in which Burbrink was
traveling had left the area.
Simmons testified that when he and Markus reached the men, both men were standing,
although Frodge testified that Burbrink was on the ground when the officers arrived. According to
both Simmons and Markus, the men continued to struggle, and the officers had to physically separate
them to stop the fight. Because Frodge and Burbrink were “still locked onto each other,” Simmons
struck Frodge in the thigh with his ASP baton and took him to the ground. Simmons maintains that
when he attempted to place Frodge under arrest, he and Frodge fell off the side of the curb, and
Frodge landed abruptly on the ground.
Frodge’s account of how he was hit with the baton differs from that of Simmons. He asserts:
[a few seconds after hitting Burbrink the] next thing I know, I’m getting hit–hit with
something, lifted up off the ground and thrown down on my face, and then I’m
getting handcuffed from the back, and I’m hearing the F word yelled over and over
. . . . [T]hen I’m hearing, you know, police radios and stuff. And at this point now,
I realize its the cops.
Frodge testified that Pence kicked Burbrink off of her leg at the same time that Frodge was struck
with the baton. Pence maintains that she did not see Simmons grab Frodge before hitting him with
the baton, and that she saw Simmons strike Frodge three times. Frodge testified that he was unsure
4

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 5

if he was struck with the baton after he went to the ground. He testified that he has three scars on
his leg from the incident but does not remember being struck more than once with the baton. He is
unsure when the other two blows may have occurred. After being hit, he recalled his arms being
pulled behind him and an officer handcuffing him pretty quickly.
After the fight had ended and Frodge was on the ground, the officers placed both men under
arrest, with Markus handcuffing Frodge and Simmons handcuffing Burbrink. Frodge testified that,
while he was on the ground, someone double-clinched his handcuffs. Markus admitted that he
double-clinched the handcuffs, but testified that he did so in order to prevent the handcuffs from
tightening during transport.
While Frodge was handcuffed, he told Markus that he was a Covington police officer and
that Markus should get Frodge’s wallet out so that he could see his police ID. Frodge explained to
Markus that he was not resisting, that he was a police officer and that Burbrink had attacked him.
Frodge also testified that he told Markus that Burbrink kicked his vehicle and asked Markus to look
at his vehicle to observe the damage. Markus examined the vehicle and noticed there was some
damage, but testified that he did not know how it got there. At some point, Frodge overheard
Markus telling Simmons that Frodge was a Covington police officer, to which Simmons responded,
“[f]uck him, if we were over in Covington, we’d be going.” Simmons contends that he reacted in
this manner because he did not want to show any favoritism to a police officer out in the street, “in
the middle of this mess with all these people.”
During the time that Markus was handcuffing Frodge, Pence was yelling at the officers,
telling them that they had the wrong guy, and attempting to explain her and Frodge’s side of the
story. Pence testified that Simmons told her to “shut the F up” and later told her “[y]ou need to shut
5

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 6

the F up, or I’m going to pile more charges on you.” Frodge testified that he tried to calm Pence
down, and eventually she sat down on the curb. However, once backup officers arrived, they
arrested Pence.
Simmons testified that he did not immediately arrest Pence because he did not have another
set of handcuffs to use on her. He testified that he was just trying to keep her under control until
backup arrived. Simmons further testified that he told Pence that she needed to be quiet, and that
would be charged if she did not stop yelling. Simmons testified that Pence sat on the curb during
some of Frodge’s arrest and that she was quiet at times, but overall, she was animated. Markus
corroborated Simmons’s observations, testifying that Pence was yelling and screaming.
Plaintiffs assert that Markus was the only officer to speak with them and that no other officer
asked them any questions or investigated the events leading up to the altercation, even though
Plaintiffs tried to explain that they were only defending themselves and their property. However,
Kunkel, the supervisor on duty and the supervisor of Simmons and Markus, testified that he arrived
on the scene in response to Simmons’s call for backup. Kunkel asserted that he attempted to speak
with Plaintiffs regarding the force Simmons used, but Plaintiffs refused to talk to him. Kunkel
testified that when he asked Frodge whether he had anything to say, Frodge just “looked at [Kunkel].
Then he belched and looked away.” Kunkel also testified that Frodge’s eyes were bloodshot and that
he could smell alcohol on him. Kunkel stated that when he opened the door of the police car and
tried to speak with Pence, she began screaming profanities at him and kicking her legs. In addition,
Kunkel spoke with Simmons and Markus at the scene, and later received written statements from
both of them about the incident. Following his investigation, Kunkel drafted a use of force report
and concluded that Simmons did not use excessive force.
6

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 7

Ultimately, Burbrink, Frodge, and Pence were transported to the Campbell County Detention
Center. They were all charged with disorderly conduct. Within hours of their arrest, Plaintiffs
posted bond and were released. Plaintiffs went to trial in March of 2009 and were acquitted.
B. Procedural History
On May 4, 2009, Plaintiffs filed suit in the United States District Court for the Eastern
District of Kentucky against Defendants.1 Plaintiffs alleged the following claims against Simmons:
state claims for battery, negligence, and malicious prosecution, and federal claims for excessive use
of force, false arrest, and Fourteenth Amendment Due Process violations under § 1983. Plaintiffs
alleged the following federal claims against the City, the City Police Department, Hall, Morgan, and
Kunkel: supervisory and municipal liability and Fourteenth Amendment Due Process violations
under §1983. The district court referred the case to a magistrate judge for preparation of a report and
recommendation.

On December 29, 2010, the magistrate judge issued a Report and

Recommendation, recommending that the district court deny all of Plaintiffs’ federal claims against
Defendants and dismiss Plaintiffs’ state law claims. On March 15, 2011, the United States District
Court for the Eastern District of Kentucky adopted the magistrate judge’s findings as its own and
entered judgment in favor of Defendants.
The magistrate judge recommended granting Simmons’s Motion for Summary Judgment
because she found no constitutional violations had occurred. The magistrate judge found that
Simmons had not violated Plaintiffs’ rights under the Fourth Amendment because he had probable
cause to arrest Plaintiffs. The magistrate judge found that Simmons had no objective evidence to

1

Markus was initially named as a defendant, but was dismissed in both his individual and
official capacity, on February 25, 2010, through an agreement with the parties.
7

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 8

support Plaintiffs’ claim of self-defense, and since Simmons could not conclusively know that an
affirmative defense applied, he had probable cause to arrest Plaintiffs. The magistrate judge applied
the “objectively reasonable” standard to the excessive force claim stemming from the use of the
ASP baton, and found that Simmons’s use of force “was reasonable to end the altercation, subdue
the parties, and take control of the situation.” The magistrate judge found that the excessive force
claim based on Frodge being too tightly handcuffed failed because he did not maintain that he
complained to either Markus or Simmons, nor that he requested that the handcuffs be loosened, as
required by the Sixth Circuit for such claims.2 Because no constitutional violation occurred, the
magistrate judge found it unnecessary to analyze Simmons’s alternative argument that he had a
qualified immunity defense.
The magistrate judge noted that Plaintiffs asserted a violation of their Fourteenth Amendment
due process rights in their Complaint, but did not allege specific conduct or violation other than
those which served as the basis of their Fourth Amendment claims. Because the Supreme Court
recognizes the Fourth Amendment as the appropriate vehicle for excessive force claims, the
magistrate judge found that she had already addressed those claims and that no further discussion
was warranted. Therefore, the magistrate judge concluded that Defendants were entitled to summary
judgment on this claim.
The magistrate judge found that Hall, Morgan, and Kunkel were entitled to summary
judgment on Plaintiffs’ claims of supervisory liability under § 1983. She concluded that Plaintiffs’
claims for supervisory liability failed as a matter of law because Simmons did not violate Plaintiffs’

2

The district court also noted that Markus was indisputably the officer who “over-tightened”
Frodge’s handcuffs. However, as stated above, he was dismissed from this action.
8

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 9

constitutional rights. To the extent Plaintiffs’ argument was based on a failure to train, ratification,
or a failure to investigate, summary judgment was also appropriate because Plaintiffs did not present
evidence sufficient to give rise to supervisor liability. The magistrate judge considered Plaintiffs’
claim for failure to enforce policies to be waived because they did not argue it in their response to
Defendants’ Motion. Therefore, she concluded, Plaintiffs’ supervisory liability claims failed in all
respects, and Defendants were entitled to summary judgment.
The magistrate judge found that Plaintiffs’ § 1983 claim for municipal liability against the
City and Simmons in his official capacity also failed.3 The magistrate judge found that there was
no underlying constitutional violation to support Plaintiff’s claim for failure to establish or enforce
adequate policies, “but even if there were, Plaintiffs fail to identify both the policymaker with final
authority and the manner in which he violated their constitutional rights.” Further, the magistrate
judge concluded that Plaintiffs failed to demonstrate that the City’s Use of Force policy was not
enforced. The magistrate judge found that Plaintiffs’ argument that the City ratified Simmons’s
unconstitutional behavior by failing to investigate failed because Plaintiffs did not identify the
relevant policymaking individual, “did not demonstrate that any municipal official expressly
approved of Simmons’s conduct,” and did not “cite to any other occurrence in which
unconstitutional actions were allegedly ratified.” In addition, the magistrate judge found that
Plaintiffs failed to establish a causal link between the alleged ratification and a constitutional
violation.

Lastly, the magistrate judge found that Plaintiffs’ argument that Simmons was

3

The district court noted that although Plaintiffs included the Newport Police Department as
a defendant to this lawsuit, a police department is not an entity which may be sued; rather the
municipality is the proper party. Therefore, Plaintiffs’ § 1983 municipal liability claim could only
be asserted against the City.
9

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 10

inadequately trained also failed because Plaintiffs did “not explain in what manner the City’s training
program, or Simmons’s training specifically, was inadequate, nor provide evidence of recurring
complaints or any other complaint of constitutional violation.” Because the magistrate judge
dismissed Plaintiffs’ federal claims, she recommended that the district court decline jurisdiction over
Plaintiffs’ state law claims and dismiss them without prejudice.
On April 13, 2011, Plaintiffs timely appealed the district court’s order. They argue that the
district court erred in its ruling regarding whether probable cause existed, whether Simmons used
excessive force, whether Plaintiffs maintained a claim against Hall, Morgan, and Kunkel under the
theory of supervisory liability, whether Plaintiffs maintained a claim for municipal liability against
the City, and whether the state law claims should be dismissed.
II. STANDARD OF REVIEW
A court of appeals reviews a district court’s grant of summary judgment de novo. Mazur v.
Young, 507 F.3d 1013, 1016 (6th Cir. 2007). Summary judgment is appropriate where “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). As the moving parties, Defendants bear the burden of showing the absence
of a genuine issue of material fact as to at least one essential element on each of Plaintiffs’ claims.
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Plaintiffs, as the non-moving parties, must
then present sufficient evidence from which a jury could reasonably find for them. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court must then determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Id. at 251-52. In making this determination,

10

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 11

the court must draw all reasonable inferences in favor of the non-moving party. See Nat’l Enters.,
Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997).
III. LAW AND ANALYSIS
A. Plaintiffs’ § 1983 Claims Against Simmons (in his Individual Capacity)
Plaintiffs assert claims against Simmons under 42 U.S.C. § 1983. A claim under § 1983
requires a plaintiff to provide facts that, when construed in his favor, establish “(1) the deprivation
of a right secured by the Constitution or laws of the United States (2) caused by a person acting
under the color of state law.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).
Plaintiffs allege that their constitutional rights were violated because they were falsely arrested and
Frodge was subjected to excessive use of force.
1. False Arrest Claims
In order for a plaintiff to prevail on a theory of wrongful arrest under § 1983, he must prove
that the police lacked probable cause. Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999). The
Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause . . . .” U.S. CONST . amend. IV. A plaintiff’s Fourth
Amendment rights are not violated if an officer does not have an arrest warrant so long as “probable
cause exists for the arresting officer’s belief that a suspect has violated or is violating the law.”
Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). Probable cause is determined by the totality
of the circumstances and from a reasonable law enforcement officer’s on-scene perspective. United
States v. Craig, 198 F. App’x 459, 462 (6th Cir. 2006); Klein v. Long, 275 F.3d 544, 550 (6th Cir.
2001). Probable cause “means facts and circumstances within the officer’s knowledge that are
11

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 12

sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit an
offense.” Estate of Dietrich v. Burrows, 167 F.3d 1007, 1010-11 (6th Cir. 1999). Under this
“flexible, common-sense standard,” Texas v. Brown, 460 U.S. 730, 742 (1983), the establishment
of probable cause requires only “a ‘fair probability’ that the individual to be arrested has either
committed or intends to commit a crime.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)
(internal citation omitted). Mere speculation that a crime occurred is insufficient to establish
probable cause. See McCurdy v. Montgomery Cnty., Ohio, 240 F.3d 512, 519 (6th Cir. 2001).
However, this court has stated that “[o]nce probable cause is established, an officer is under
no duty to investigate further or to look for additional evidence which may exculpate the accused.”
Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999). Nevertheless, “an officer cannot look only at
the evidence of guilt while ignoring all exculpatory evidence. Rather, the officer must consider the
totality of the circumstances, recognizing both the inculpatory and exculpatory evidence, before
determining if he has probable cause to make an arrest.” Gardenhire v. Schubert, 205 F.3d 303,318
(6th Cir. 2000). However, when a suspect asserts an affirmative defense, this does not automatically
vitiate probable cause. The officer is not required to accept the explanation without question, but
a police officer “may not ignore information known to him which proves that the suspect is protected
by an affirmative legal justification.” Fridley, 291 F.3d at 873 (internal quotation marks omitted).
On the other hand, “[e]ven if the circumstances suggest that a suspect may have an affirmative
defense, if a reasonable officer would not ‘conclusively know’ that the suspect is protected by the
defense, then [the officer] is free to arrest the suspect provided there is probable cause to do so.” Id.

12

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 13

Markus and Simmons arrested Plaintiffs for disorderly conduct because of their fight with
Burbrink. Under the Kentucky Revised Statutes, a person is guilty of this offense
when in a public place and with intent to cause public inconvenience, annoyance, or
alarm, or wantonly creating a risk thereof, he:
(a) Engages in fighting or in violent, tumultuous, or threatening behavior;
Ky. Rev. Stat. § 525.060(1). Plaintiffs do not dispute the fact that they were in a public place or that
they were fighting. They argue that probable cause was lacking because of their affirmative defense
of self-defense. Plaintiffs assert that Simmons should have known that they were only defending
their property and that because damage to the car corroborated their story, there was no probable
cause to arrest them. Plaintiffs maintain that the interviews of Simmons and Markus, conducted by
the Professional Compliance Board of the Covington Police Department, demonstrate that the
officers agreed that they would have done the same thing if they were in Plaintiffs’ situation, and
further support their argument that probable cause did not exist.
We hold that Simmons had probable cause to arrest Plaintiffs. In order for Simmons to have
probable cause, he only needed a “fair probability” that Plaintiffs were engaged in disorderly
conduct, and he could not “conclusively know” that Plaintiffs had validly asserted an affirmative
defense. It is undisputed that when Simmons first observed the incident with Plaintiffs and ran
across the street, Burbrink and Frodge were fighting in the street, a fight that commenced while the
cars in which they were riding were stopped at a traffic light. Frodge admits to hitting Burbrink and
Pence admits to kicking Burbrink. Further, it is undisputed that the fight occurred on a Saturday
night in a well-populated area. For the reasons which follow, the court concludes that there was
probable cause to arrest Plaintiffs for disorderly conduct. First, the fight occurred in a public place.
Second, the conduct involved demonstrated that the parties intended to cause public inconvenience,
13

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 14

annoyance, or alarm, or that they wantonly created a risk thereof. Finally, Plaintiffs were involved
in fighting. The parties dispute the point at which the fight ended, but do not dispute that a fight
occurred, which Simmons observed. Plaintiffs and Simmons’s accounts establish that probable
cause existed for Plaintiffs’ arrests.
However, Plaintiffs counter that their assertion of the affirmative defense of self-defense
should have precluded Simmons from arresting them. Plaintiffs argue that Simmons did not credit
their assertion that they only fought Burbrink because he had damaged the Mustang and they were
defending their property. Plaintiffs contend that Simmons did not ask them their side of the story
and did not consider the damage to their car. This court has held that “[w]here the police have
sufficient inculpatory evidence to give rise to a determination of probable cause and they do not
know of any exculpatory evidence, . . .‘the failure to make a further investigation does not negate
probable cause.’” Klein, 275 F.3d at 552 (quoting Coogan v. City of Wixom, 820 F.2d 170, 173 (6th
Cir. 1987)). As discussed above, Simmons had probable cause to arrest Frodge. Simmons was not
aware of any affirmative defense of self-defense until after Frodge had been arrested. Thus, this
defense did not negate the finding of probable cause as to Frodge. Pence, on the other hand, was
arrested after Simmons was aware that she was asserting an affirmative defense. However, there is
no evidence that would have enabled Simmons to “conclusively know” that Plaintiffs were protected
by their claim of self-defense. Simmons only observed the fight after Burbrink had kicked the car.
Though Markus looked at the Mustang for damage and could see some damage to the car, he had
no way of knowing whether this was caused by Burbrink as Frodge had alleged. Thus, even though
Simmons was aware that Plaintiffs were asserting this defense at the time of Pence’s arrest, because

14

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 15

he could not “conclusively know” it was validly asserted, Simmons had probable cause to arrest
Pence.
Plaintiffs assert that Dietrich and Gardenhire are analogous to their case and require
Simmons to accept their affirmative defense. However, these cases are readily distinguishable since,
in those cases the police officers were able to verify information, prior to arrest, that vitiated the
officers’ finding of probable cause, but proceeded to arrest the plaintiffs nonetheless. See Dietrich,
167 F.3d at 1011; Gardenhire, 205 F.3d at 316. Here, Simmons was unable to verify Plaintiffs’
claims of self-defense prior to arrest. There was no evidence available to Simmons to demonstrate
that they had justifiably acted in self-defense.
Plaintiffs also argue that the magistrate judge erred in analyzing probable cause because she
failed to “view all facts and draw all reasonable inferences in [the] light most favorable to nonmoving party as required under Fed. R. Civ. P. 56(a).” While the district court must determine a
motion for summary judgment viewing the facts and drawing all reasonable inferences in the light
most favorable to the non-moving party, the district court must do so based on the record before it,
and not based on the parties’ arguments that are contrary to the relevant portions of the record.
Plaintiffs attempted to oppose Simmons’s Motion for Summary Judgment with materials from the
investigation conducted by the Covington Police Department’s Professional Compliance Review
Board. They seek to use those same materials to support their instant appeal. The conclusion reached
by the Covington Police Department–that Frodge had engaged in self-defense–does not negate the
probable cause finding made at the scene by the officers. In addition, statements made by Simmons
and Markus to the Covington Police Department Professional Compliance Review Board in
interviews, that they would have done the same thing had they been in the Plaintiffs’ position, also
15

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 16

do not negate the probable cause finding made at the scene by the officers. Probable cause is
determined by the totality of the circumstances and from a reasonable law enforcement officer’s onscene perspective. Craig, 198 F. App’x at 462. Any conclusions reached by the Covington Police
Department after the incident, have no bearing on whether or not Simmons lacked probable cause
at the time of Plaintiffs’ arrests. There was no evidence that would have allowed Simmons to
conclusively know Plaintiffs had validly asserted the affirmative defense of self-defense. In light
of the testimony of Simmons, Markus, and Plaintiffs, we hold that Simmons had probable cause to
arrest Plaintiffs for disorderly conduct. The facts were “sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown” that Plaintiffs had engaged in
disorderly conduct. Dietrich, 167 F.3d at 1010-11. Therefore, no constitutional violation occurred,
and this court affirms the district court’s judgment in favor of Simmons.
2. Excessive Force Claims
Frodge asserts that Simmons used excessive force by hitting him with the ASP baton and
over-tightening his handcuffs. The court will address each instance of alleged excessive use of force
separately.
a. ASP Baton
The appropriate standard to use in analyzing an excessive force claim brought under §1983
“is determined by identifying the specific constitutional right infringed by the challenged application
of force.” Lustig v. Mondeau, 211 F. App’x 364, 369 (6th Cir. 2006) (citing Graham v. Conner, 490
U.S. 386, 393-94 (1989)). All claims that police officers used excessive force in the course of an
arrest should be analyzed under the Fourth Amendment and its “objective reasonableness” standard.
Graham, 490 U.S. at 395. Under this standard, the court must take into consideration the totality of
16

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 17

the circumstances. Id. at 397. In applying the objective reasonableness test, the court is required to
pay “careful attention to the facts and circumstances of each particular case, including [1] the
severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the
officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. at 396. Furthermore, the test of the “reasonableness” of a particular use of force by law
enforcement is objective, and “must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id. This court has stated that it should not
substitute its own ideas in regard to what is “proper police procedure for the instantaneous decision
of the officer at the scene.” Boyd v. Baeppler, 215 F.3d 594, 602 (6th Cir. 2000). In addition, “[t]he
calculus of reasonableness must embody allowance 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.” Graham, 490 U.S.
at 396-97. The Supreme Court has stated that a mistaken belief may still be a reasonable belief, and
the fact that it turned out to be mistaken does not undermine its reasonableness as considered at the
time of the acts. See Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223 (2009).
Plaintiffs, therefore, needed to show that Simmons’s use of force was objectively
unreasonable. The magistrate judge found that Simmons’s use of force was objectively reasonable.
Based on the testimony of Plaintiffs, Markus, and Simmons, the totality of the circumstances
demonstrate that Simmons’s use of the baton was objectively reasonable. While two of the Graham
factors may not support the use of force, the remaining factor weighs heavily in favor of Simmons’s
use of force being reasonable.
17

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 18

The first factor is the severity of the crime. Graham, 490 U.S. at 396. The crime at issue was
disorderly conduct, which is not a particularly severe crime. Therefore, this factor does not weigh
in favor of Simmons’s use of force being reasonable.
The second factor is “whether the suspect poses an immediate threat to the safety of the
officers or others.” Id. Plaintiffs were fighting with Burbrink and, therefore, they posed a threat to
at least one another. It is indisputable that at least right before the officers arrived, Frodge was
fighting Burbrink. Frodge argues, in his brief, that the fight had ended when he was struck with
Simmons’s baton and, thus, the force Simmons used was unreasonable. However, Frodge’s
testimony does not support this assertion. Specifically, Frodge argues in his brief that “[w]ith
Burbrink on the ground and the fight over, [Frodge] was then grabbed and struck multiple times from
behind.” Frodge supports this assertion with a citation to his interview with the Covington Police
Department Professional Compliance Board.4 In his deposition, Frodge testified that he punched
Burbrink, and that as he started to spin to the ground, the next thing he knew he was being hit with
something. Frodge testified that he felt a strike to his leg within seconds of throwing the punch. He
also observed that while Burbrink was falling to the ground, Pence kicked him. Therefore, based
on Frodge’s deposition testimony, the fight had not completely ended at the time the officers reached
the fight and when the baton was used. Furthermore, as Plaintiffs’ deposition testimony indicates,
it was a Saturday night, lots of people were in the area, and the fight occurred in or near the street,
4

While Frodge points to his June 5, 2008, interview with the Covington Police Department
Professional Compliance Board, wherein he indicates that the fight was not ongoing at the time
Simmons hit him with the baton, that statement is not admissible under Fed. R. Evid. 801(d)(1)(B)
as Plaintiffs argue. Although Plaintiffs contend that the district court did not address this issue, the
district court’s ruling can be read as implicitly ruling on this issue, since the magistrate judge found
the fight to still be ongoing at this point based on Frodge’s January 21, 2010, deposition testimony.
18

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 19

while the vehicles were stopped at the light. Simmons testified that he first called out to the parties
to “knock it off,” but that his warning was not heeded. Thus, it would have been especially
necessary for Simmons and Markus to respond quickly to break up the fight. Simmons testified that
after he used his baton, the fight ended, demonstrating that the force served its proper purpose.
Because the parties were fighting one another, there was a threat to each other and, given the highly
populated area, possibly to others as well. Therefore, it was essential that the fight be brought to an
end as quickly as possible. Consequently, this factor weighs in favor of Simmons’s use of force
being reasonable.
The third factor is whether the suspect “is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. While it is clear that Frodge and Burbrink did not stop
fighting despite unrefuted testimony that Simmons, in full police uniform, told them to “knock it
off,” there is no evidence that they were resisting arrest or attempting to evade by flight at that time.
Although Plaintiffs argue there are several analogous cases that demonstrate the use of force was
unreasonable when arresting plaintiffs for fairly minor crimes, these cases are easily distinguishable,
as none of them involve incidents where the plaintiff was engaged in a fight, essentially in the street,
in a highly populated area. In addition, the force used in those cases was much greater than that used
in the instant case. See Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009) (finding that a police
officer’s pepper spraying of the plaintiff when he was walking away from the officer, but was not
under arrest, amounted to excessive force); Solomon v. Auburn Hills Police Dept., 389 F.3d 167 (6th
Cir. 2004) (finding arresting officer’s actions could have amounted to excessive force because he
twisted and grabbed the plaintiff’s arm with enough force to fracture it in several places even though
she was not a flight risk and had followed officer’s orders); Landis v. Baker, 297 F. App’x 453 (6th
19

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 20

Cir. 2008) (finding police officers used excessive force in detaining arrestee where officers used at
least ten strikes of a baton when arrestee was not actively resisting arrest, then tasered arrestee four
times over just a few seconds and held arrestee’s face submerged in water for at least ten to fifteen
seconds, and arrestee ultimately died). Thus, these cases are inapposite.
A review of the totality of the circumstances demonstrates that Simmons’s use of force was
reasonable. Given that Simmons and Markus observed Plaintiffs actively fighting with Burbrink and
needed to quickly break up the fight, the use of the baton was reasonable. There is no evidence that
the baton was used with such force as to cause serious injury to Frodge. Frodge also asserts that
taking him to the ground and twisting his arm behind his back also amounted to excessive force.
However, Simmons testified that he took Frodge to the ground in the process of breaking up the fight
and falling off the curb. Under the circumstances, it was reasonable for Simmons to twist Frodge’s
arm behind his back and take him to the ground in Simmons’s efforts to end the fight and place
Frodge under arrest. As the Graham court indicated, “[t]he calculus of reasonableness must embody
allowance 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.” 490 U.S. at 396-97. Further, the reasonableness of Simmons’s
actions “must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. at 396. Taking into account the parties’ failure to respond to his
command to “knock it off,” and given the location of the fight, it was reasonable for Simmons to
employ some force in order to bring the fight to an end. Therefore, no constitutional violation
occurred, and this court affirms the district court’s judgment in favor of Simmons.

20

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 21

b. Tight Handcuffs
This court has stated that in order to reach a jury on a claim of tight handcuffing, “a plaintiff
must offer sufficient evidence . . . that: (1) he or she complained the handcuffs were too tight; (2)
the officer ignored those complaints; and (3) the plaintiff experienced ‘some physical injury’
resulting from the handcuffing.” Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir.
2009). The magistrate judge found that Frodge did not maintain that he complained that his
handcuffs were too tight or that he suffered some physical injury from the handcuffing. Plaintiffs
have not refuted this finding. Therefore, because Plaintiffs have failed to demonstrate these
elements, this court affirms the district court’s judgment in favor of Simmons.
B. Plaintiffs’ § 1983 Supervisory Liability Claims Against Hall, Morgan, and Kunkel
Plaintiffs argue that Hall, Morgan, and Kunkel are liable for constitutional violations,
allegedly committed by Simmons, based on a theory of supervisory liability. The magistrate judge
found Defendants were entitled to summary judgment on these claims because under any of the
theories asserted by Plaintiffs, their claims failed.
This court held in McQueen v. Beecher Cmty. Schools, 433 F.3d 460, 470 (6th Cir. 2006),
that “a prerequisite of supervisory liability under § 1983 is unconstitutional conduct by a subordinate
of the supervisor.” In order to show supervisory liability, a plaintiff must “show that the [supervisor]
at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays v.
Jefferson Cnty, Ky., 668 F.2d 869, 874 (6th Cir. 1982)). The court also stated that, “a supervisory
official’s failure to supervise, control or train the offending individual is not actionable unless the
supervisor ‘either encouraged the specific incident of misconduct or in some other way directly
21

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 22

participated in it.’” Id. at 300 (quoting Hays, 668 F.2d at 874); see also Cardinal v. Metrish, 564
F.3d 794, 802-03 (6th Cir. 2009) (“We have held that, even if a plaintiff can prove a violation of his
constitutional rights, his § 1983 claim must fail against a supervisory official unless ‘the supervisor
encouraged the specific incident of misconduct or in some other way directly participated in it.’”)
(quoting Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002)).
The magistrate judge found that Plaintiffs’ claims of supervisory liability failed as a matter
of law because she determined that Simmons did not violate Plaintiffs’ constitutional rights.
Because this court also finds there were no constitutional violations, Plaintiffs’ claims fail as a matter
of law.
Nevertheless, even if Simmons had violated Plaintiffs’ constitutional rights, their supervisory
liability claims would still fail. Plaintiffs argue that Hall, Morgan, and Kunkel ratified Simmons’s
conduct by failing to investigate the incident and failing to discipline Simmons for making an invalid
arrest and using excessive force.

This is insufficient to make supervisors liable for their

subordinates’ conduct. Plaintiffs must present evidence that Hall, Morgan, and Kunkel “did more
than play a passive role in the alleged violation . . . . Supervisory liability under § 1983 cannot attach
where the allegation of liability is based upon a mere failure to act.” Bass v. Robinson, 167 F.3d
1041, 1048 (6th Cir. 1999).
Here, the claims asserted, failure to discipline and failure to act, do not constitute “active
constitutional behavior” as required and thus, are not actionable. Id. Further, Kunkel did conduct
an investigation. However, even an inadequate investigation is still insufficient to trigger liability
because a supervisory liability claim “cannot be based on simple negligence.” Leach v. Shelby Cnty.
Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). In addition, there is no claim by Plaintiffs that the
22

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 23

failure to investigate was part of an ongoing pattern by Kunkel. In any event, Kunkel’s investigation
had no bearing on the alleged violation of Plaintiffs’ rights, as Plaintiffs have asserted claims for
false arrest and excessive use of force, that occurred prior to the investigation.
Thus, Hall, Morgan, and Kunkel did not engage in any conduct that violated Plaintiffs’ rights,
and Plaintiffs failed to state a claim for supervisor liability based on ratification. Consequently, this
court affirms the district court’s judgment in favor of Hall, Morgan, and Kunkel.
C. Plaintiffs’ § 1983 Municipal Liability Claims Against the City of Newport
and Simmons (in his Official Capacity)
Plaintiffs assert the following three bases for their municipal liability claims: (1) the City
failed to establish or enforce policies; (2) the City ratified Simmons’s unconstitutional behavior; and
(3) the City inadequately trained Simmons. The magistrate judge found that Plaintiffs’ claims failed
under all three theories. However, on appeal, Plaintiffs only argue that it was an error to determine
that they could not maintain a claim for municipal liability based upon a failure to adequately train.
Specifically, Plaintiffs argue that the City is liable under § 1983 municipal liability because the City
failed to adequately train its officers as demonstrated by Simmons’s testimony that he does not
always announce that he is a police officer and Kunkel’s failure to investigate.
To prevail on a claim against a municipality under § 1983, a plaintiff must establish both:
(1) the deprivation of a constitutional right; and (2) the city’s responsibility for that violation. See
Howard v. City of Girard, 346 F. App’x 49, 51 (6th Cir. 2009) (citing Ellis ex rel. Pendergrass v.
Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006)). A plaintiff suing a municipality must
identify an unconstitutional policy or custom in order to prevail on a § 1983 claim. See id. A policy
that fails to adequately train an employee, such as a police officer, may “serve as the basis for § 1983

23

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 24

liability only where the failure to train amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). To
establish liability under City of Canton, “the plaintiff must prove, that the training program at issue
is inadequate to the tasks that officers must perform; that the inadequacy is the result of the city's
deliberate indifference; and that the inadequacy is ‘closely related to’ or ‘actually caused’ the
plaintiff's injury.” Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992) (citing Hill v.
McIntyre, 884 F.2d 271, 275 (6th Cir. 1989)).
Plaintiffs assert that they have demonstrated a failure to train by the City based upon the fact
that Simmons did not announce his status as a police officer to Frodge and Burbrink when he told
them to “knock it off,” and the fact that he admitted that he generally finds it unnecessary to do so
when he is in full police uniform. Plaintiffs argue that their failure to adequately train theory is also
based upon Kunkel’s failure to perform any investigation into the use of force. The magistrate judge
found that this claim failed because Plaintiffs “do not explain in what manner the City’s training
program, or Simmons’s training specifically, was inadequate, nor [do they] provide evidence of
recurring complaints or any other complaint of a constitutional violation . . . .” Plaintiffs do not
identify any alleged deficiencies in the training provided to Simmons or Kunkel. The Supreme Court
has stated that the fact “[t]hat 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.” City of Canton, 489 U.S. at 390-91. Further, “[i]t may be, for
example, that an otherwise sound program has occasionally been negligently administered” or that
an injury could have been avoided if an officer had better or more training. Id. at 391. However,
neither of these circumstances will be sufficient to hold the City liable. Id. Plaintiffs merely allege
24

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 25

that Simmons and Kunkel, and possibly Markus, may have been inadequately trained, but Plaintiffs
fail to demonstrate or explain how the City’s training program is insufficient or how the allegedly
wrongful actions of the officers were caused by a defect in the City’s training program. Because
Plaintiffs have failed to meet the requisite standard, their § 1983 municipal liability claims must fail.
Therefore, this court affirms the district court’s judgment in favor of the City and Simmons.
D. Plaintiffs’ State Law Claims
Plaintiffs object to the dismissal of the state law claims because they assert that constitutional
violations have occurred, and therefore supplemental jurisdiction is properly exercised over these
claims. This court reviews a district court’s decision to decline supplemental jurisdiction for abuse
of discretion. See Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 853 (6th Cir.
2007). Pursuant to 28 U.S.C. § 1367(c)(3), the district court may decline to exercise supplemental
jurisdiction over state law claims if it has dismissed all claims over which it had original jurisdiction.
The district court’s decision to exercise supplemental jurisdiction “depends on judicial economy,
convenience, fairness, and comity.” Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244,
1254 (6th Cir. 1996) (internal citation and quotation marks omitted).
The district court had original jurisdiction over Plaintiffs’ § 1983 claims for false arrest,
excessive force, and supervisory and municipal liability and could have exercised supplemental
jurisdiction over Plaintiffs’ state law claims. However, this court has stated that “‘in the usual case
in which all federal law claims are eliminated before trial, the balance of factors to be considered .
. . will point toward declining to exercise jurisdiction over the remaining state-law claims.’” Robert
N. Clemens Trust, 485 F.3d at 853 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988)). The district court granted summary judgment in favor of Defendants on all of Plaintiffs’
25

Case: 11-5458

Document: 006111457328

Filed: 10/05/2012

Page: 26

federal claims. Similarly, we have held that there were no constitutional violations and that
Defendants were entitled to summary judgment. Thus, Plaintiffs’ argument that the district court
should have exercised supplemental jurisdiction over the state law claims because constitutional
violations have occurred is not well-taken. Plaintiffs point to no other factors that would support the
exercise of supplemental jurisdiction under § 1367 over their state law claims in light of the federal
claims being dismissed. Consequently, this court finds the district court did not abuse its discretion
in declining to exercise supplemental jurisdiction over Plaintiffs’ state law claims.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment
on all of Plaintiffs’ federal claims and dismissing Plaintiffs’ state law claims.

26