Anita Arrington-bey v. City of Bedford Heights, Ohio, et al

Filing

OPINION filed : REVERSED. Decision not for publication. Alice M. Batchelder, Jeffrey S. Sutton (AUTHORING), and Raymond M. Kethledge, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0125n.06
Case No. 16-3317
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ANITA ARRINGTON-BEY, etc.,
Plaintiff-Appellee,
v.
CITY OF BEDFORD HEIGHTS, et al.,
Defendants-Appellants.

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FILED
Feb 24, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: BATCHELDER, SUTTON, and KETHLEDGE, Circuit Judges.
SUTTON, Circuit Judge. When Omar Arrington-Bey died in a Bedford Heights jail cell,
that was not an obvious consequence of his arrest for disturbing the peace at a Lowe’s store. The
question is whether bad luck, negligence by the relevant local law enforcement officials, or
deliberate indifference by them caused his death. In suing the officers involved in his arrest and
detention and the City, Omar’s mother, Anita Arrington-Bey, took the position that the officers’
deliberate indifference and lack of adequate training caused her son’s death, making them liable
under the Fourteenth Amendment and Ohio law. The district court largely agreed. It denied
federal and state immunity to all but one defendant, dismissed the state law and punitive
damages claims against the City, and denied summary judgment to the City on the federal
constitutional claim. We must reverse, however, because there was no violation of a clearly

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established constitutional right, and the officers did not act with the recklessness that would
permit them to be liable under Ohio law.
Here is what happened. On June 21, 2013, Anita drove Omar to the Lowe’s in Bedford
Heights, where he’d recently been fired after failing to show up to work for over a week, to pick
up his last paycheck. When the assistant manager, Russell Nelson, came over to see him, Omar
“started talking a lot of gibberish,” including about selling $5000 gloves to Lowe’s or Kohl’s. R.
39-7 at 5. Nelson knew that “something was a little off” and started guiding Omar out of the
store. Id.. Omar went back inside, demanded his paycheck, and began kicking and throwing
paint cans when Nelson told him another employee would be in touch about it. In response to a
911 call from the store, Bedford Heights dispatched police officers Tim Honsaker and Maurice
Ellis.
The officers spotted Omar’s car pulling out of the Lowe’s parking lot and stopped it
nearby. Omar was in the passenger seat, had changed his shirt, and was evasive when they asked
him whether he was the one causing trouble at Lowe’s. But he was compliant and calm when
they asked him to step out of the car. During the pat-down, the officers discovered pills in a
container, which they placed back in Omar’s pocket after handcuffing and detaining him.
Honsaker recalled Omar saying that the pills were for a psychiatric condition and that he had not
taken his medication for days or weeks. Anita told Ellis that Omar was bipolar, that the pills
were Seroquel, and that he had not taken his medication for some time.
Everyone returned to the Lowe’s parking lot while the police continued their
investigation. According to Honsaker, Omar “was rambling and ranting and raving about every
possible topic he could think of” and became angry if Honsaker interjected. R. 41-4 at 43. Omar
claimed, among other things, that he made lots of money through internet businesses, that he had

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a million-dollar cell phone and that his father was the son of Satan. That behavior led Honsaker
to ask Anita if Omar was on any psychiatric medication, and she told him just what she’d told
Ellis: that Omar was bipolar and hadn’t been taking his medicine. Phillip Chow, the supervising
officer at the scene, got much of the same information—that Omar had been found with
Seroquel, that he was talking non-stop, and that he had claimed to be a state trooper.
Honsaker delivered Omar to the jail, where correctional officers Cynthia Lee and Carolyn
Hill processed his intake. Honsaker told Lee and Hill about Omar’s agitated rambling in the
back of the cruiser, and they acknowledged that they had already heard that Omar had been
arrested for going “crazy” at Lowe’s. R. 38-3 at 15. They found Omar’s pills during a pat-down
but did not ask what they were. Hill decided to delay booking (and the included psychological
screening) until Omar calmed down, because Hill and Lee, both female, were the only two
correctional officers on duty. They put Omar in the segregation room. When they uncuffed him
and he removed his belt, Omar acted like he was performing a striptease.
Over the next several hours, Omar would calm down from time to time but then return to
rambling, talking to himself, and engaging in other unusual behavior. For example: He kicked
the door of the interview room, sang and rapped, and talked some more about his million-dollar
music contract. When Honsaker and Chow escorted him to the bathroom, Omar shook his penis
and asked Honsaker if he’d like to hold it. He told Chow that he needed his cell phone because
there were million dollar plans on it. At one point, Assistant Police Chief David Leonardi—
who’d been told about Omar’s pills, bizarre behavior, and possible mental problems—went to
find out why Omar was pounding on the door of the interview room. Omar responded with
racial slurs until Leonardi threatened to put him in the restraint chair.

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Correctional officers Jeffrey Mudra and Cheryl Sindone began their shift at 3:00 PM.
Lee and Hill briefed them on Omar’s agitated behavior and warned them to use double-escorting
whenever Omar was out of the interview room. When Omar was calm and had stopped talking
to himself, Mudra and Sindone went to serve him some food. Even though he had a spoon,
Omar ate with his hands and spilled food all over himself. But he was calm enough, and Mudra
and Sindone decided to book him. During the medical screening—performed by an officer
trained to give the survey but not a nurse or doctor—Omar was compliant and cooperative, and
he answered “no” when Mudra asked him if he’d seen a doctor for any psychiatric issue or took
any psychiatric medications. Mudra later found Omar’s pills and filled out a second property
form, but he didn’t ask what the pills were for or revisit the medical screening.
At 6:30 PM, Mudra let Omar out of the interrogation room without handcuffs so that
Omar could make a phone call. Without warning, Omar threw Mudra to the floor and began
choking him. Sindone called for backup, then jumped on Omar’s back. Omar started choking
her too. Police officers rushed into the jail and pulled Omar into the restraint chair. At that
point, Leonardi noticed something wrong. They took Omar’s pulse: weak. Then they got him
out of the restraint chair, laid him prone on the floor, and tried to resuscitate him. Leonardi
called the emergency rescue squad, which transported Omar to the hospital, where he was
pronounced dead. The autopsy explained that Omar had “died as a result of a sudden cardiac
event during a physical altercation in association with bipolar disease.” R. 39-15 at 4.
Anita Arrington-Bey sued the individual officers, the doctor responsible for medical
policies at the jail, and the City for violations of Omar’s federal and state rights. The defendants
moved for summary judgment. The district court granted qualified immunity to the doctor, who
had never come into contact with Omar, and dismissed the state law claims against the doctor

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and the City. But it denied qualified immunity to all of the officers and denied the City’s motion
for summary judgment on the Fourteenth Amendment due process claim.
Standard of review. Summary judgment is proper if “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). We give fresh review to the district court’s application of that standard. T.S. v. Doe, 742
F.3d 632, 635 (6th Cir. 2014). And we draw all inferences in the evidence in favor of the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).
Qualified immunity. In § 1983 constitutional torts like this one, qualified immunity
prevents government officials from being held liable if (1) the officers did not violate any
constitutional guarantees or (2) the guarantee, even if violated, was not “clearly established” at
the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
The second prong resolves this case.

Because no case clearly established the

unlawfulness of the decisions made during Omar’s arrest and detention, the officers involved are
entitled to qualified immunity. Yes, “a pretrial detainee’s right to medical treatment for a serious
medical need has been established since at least 1987.” Est. of Carter v. City of Detroit, 408
F.3d 305, 313 (6th Cir. 2005). And yes, that right encompasses physiological and psychiatric
ailments. See Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006).
But these principles do not suffice on their own. “[C]learly established law” may not be
defined at such “a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). It
must be more “particularized” than that. Anderson v. Creighton, 483 U.S. 635, 640 (1987); see
Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 508–09 (6th Cir. 2012). The Supreme
Court recently reminded us that a plaintiff must identify a case with a similar fact pattern that
would have given “fair and clear warning to officers” about what the law requires. White v.

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Pauly, 137 S. Ct. 548, 552 (2017) (quotation omitted). The district court, we note, did not have
the benefit of Pauly. But we do, and accordingly we must follow its lead. Immunity protects
“all but the plainly incompetent or those who knowingly violate the law.” Id. at 551 (quotation
omitted). The “dispositive inquiry . . . is whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202
(2001).
Arrington-Bey has not pointed to, and we have not found, any case like this one—a case
showing to “all but the plainly incompetent” that the officers at the scene immediately needed to
seek medical treatment or that the jailers had to do the same once he arrived at the prison. Start
with the arresting officers. No doubt, Honsaker, Ellis, and Chow perceived that Omar was
mentally unstable—and rightly so. But no case would have notified them of a constitutional
requirement that they take Omar to an emergency room rather than the jail. No case, indeed,
clearly required them to do more than what they did—collect Omar’s pills, note his aggressive
behavior and his mother’s statement that Omar was bipolar and off his medication, and inform
the jailers. In delivering him to the jail, they had no reason to doubt that reasonable procedures
would be used at that point, whether with respect to medical screening or separation of him from
other arrestees if putting him in the general population might prove dangerous. Taking Omar to
the jail under those circumstances did not violate any clearly established law.
Arrington-Bey’s case citations are at least one step removed from this fact pattern. We
begin with, and could end with, the reality that she points to no Supreme Court or Sixth Circuit
case that requires officers to take a delusional arrestee like Omar to a hospital rather than a jail.
Each of Arrington-Bey’s cases fails to address this point, and not one involves remotely
comparable facts. Cooper v. County of Washtenaw involved a cognizable claim brought by

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relatives of a detainee who killed himself. But the detainee in that case expressed suicidal
tendencies, and the officers neglected a court order that the individual be placed on suicide
watch. 222 F. App’x 459, 465, 468–69 (6th Cir. 2007). No such warnings appeared here, and
above all Omar’s delusional behavior did not portend the risk that came to pass: a heart attack.
Nor is Estate of Owensby v. City of Cincinnati of any help, as it had nothing to do with
psychiatric care. 385 F. Supp. 2d 626, 636 (S.D. Ohio 2004). She also looks outside the circuit
to Mann v. Taser International, Inc., 588 F.3d 1291 (11th Cir. 2009). But that case ruled for the
officers who had taken an arrestee to jail even after witnessing plainly delusional and violent
behavior during the arrest. Id. at 1299–1301, 1308. And in Degraw v. Gualtieri, No. 8:11-CV720-EAK-MAP, 2013 WL 6002837, at *4 (M.D. Fla. Nov. 12, 2013), there was no dispute that a
psychotic detainee could be held and treated at the jail rather than at a hospital. In short, no
clearly established law, here or anywhere else from what we’ve seen, required the arresting
officers to drive Omar to a hospital rather than the jail under these circumstances.
Now consider the jailers. Even if the corrections officers had reason to know that Omar
was bipolar and even if bipolar disorder constitutes a serious medical condition, see BonnerTurner v. City of Ecorse, 627 F. App’x 400, 402, 407 (6th Cir. 2015), no case alerted the officers
that mental instability of this sort required immediate medical attention. The severity of Omar’s
condition and his deprivation fall well short of the deliberate indifference claim we upheld in
Clark-Murphy v. Foreback. There, the inmate was suffering from heat stroke and seizures, but
the jailers nonetheless kept him in a hot cell for six days, without medical care or water, after
which he died from the predictable results of the deprivation. Clark-Murphy, 439 F.3d at 283–
85. Omar did not demonstrate any suicidal tendencies, as in Bonner-Turner, 627 F. App’x at
407, and he did not have any apparent risk of seizures, as in Parsons v. Caruso, 491 F. App’x

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597, 603 (6th Cir. 2012). For that matter, there was nothing to suggest he was at risk of the heart
attack that ended up killing him. And indeed Arrington-Bey does not identify anything that
suggests such a risk. These distinctions add up to an insurmountable barrier. Even if the jail
officers knew that Omar was bipolar and delusional, no clearly established law required them to
do more than what they did: They kept him in seclusion for everyone’s safety, waited until he
was calm to feed him and book him, asked him about any psychiatric diagnoses during the
medical screening, and after eight hours of detention uncuffed him and released him from his cell
to make a call to be released on bail.
Because a reasonable officer in the situations confronted by officers Honsaker, Ellis,
Chow, Hill, Lee, Mudra, Sindone, and Leonardi could have believed their treatment of Omar was
lawful, they each are entitled to qualified immunity.
Monell claim. The district court also denied summary judgment to the City on the § 1983
failure-to-train claim. See Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).
We disagree. Arrington-Bey must show that the City’s “failure to train” officers to properly
identify and secure treatment for mental conditions like Omar’s “amounts to deliberate
indifference.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).

But “a municipal

policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional
right when that right has not yet been clearly established.” Hagans, 695 F.3d at 511 (quotation
omitted); see Young v. Cty. of Fulton, 160 F.3d 899, 904 (2d Cir. 1998); Szabla v. City of
Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en banc); see also Bd. of Cty. Comm’rs of
Bryan Cty. v. Brown, 520 U.S. 397, 410–11 (1997). The absence of a clearly established right
spells the end of this Monell claim.

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State immunity. The state law claims fare no better. Ohio grants immunity to public
officials unless their “acts or omissions were with malicious purpose, in bad faith, or in a wanton
or reckless manner.” Ohio Rev. Code § 2744.03(A)(6)(b); see Ortiz ex rel. Ortiz v. Kazimer,
811 F.3d 848, 853 (6th Cir. 2016). As relevant here, recklessness is conduct “characterized by
the conscious disregard of or indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than negligent conduct.”
Argabrite v. Neer, 2016 Ohio 8374, 2016 WL 7449213, at *2 (Dec. 27, 2016). We think no
reasonable jury could find recklessness, much less wantonness, bad faith, or maliciousness, on
this record. The officers could not have been on notice of an obligation to give Omar immediate
medical treatment because no clear duty existed, for the reasons shown above. Nor did they
unreasonably disregard a “known or obvious risk of harm.” Id. From the arrest to the initial
detention to the booking to the attack, each officer treated Omar respectfully and carefully in
light of his behavior and mental condition. The officers, everyone agrees, put Omar in seclusion
for his own safety and the safety of others. None had reason to believe that he was suffering
more than a typical arrestee. And none had reason to believe he was so delusional that he would
act out dangerously, much less die of a heart attack in the attempt. Under these circumstances,
Ohio provides immunity from suit, and Arrington-Bey’s state law claims must stop here. See
Hagans, 695 F.3d at 511.
Police officers face tough judgment calls about what to do with the mentally ill.
Arrestees do not normally arrive at jail toting their medical records. Psychiatric problems do not
always manifest themselves with clarity. And not even clear psychiatric problems always reveal
their potential for serious harm—as here a heart attack. Perhaps those truths counsel in favor of
more policies and training designed to minimize tragic injuries and deaths like Omar’s. And

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perhaps police would be wise to err on the side of calling a doctor in cases like this one. But the
United States Constitution and Ohio law do not elevate any deviation from wise policy into a
cognizable lawsuit for money damages against the City or the relevant law enforcement officers.
For these reasons, we reverse.

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