Huffman et al v. Village of Newburgh Heights et al

Filing 20

Memorandum of Opinion and Order granting in part defendants' Motion for summary judgment (Related Doc # 13 ), specifically as to the plaintiffs substantive due process claims. The remainder of the plaintiffs claims are dismissed without prejudice. Judge Lesley Wells on 7/27/15.(G,CA)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

-----------------------------------------------------WADE HUFFMAN, et al.,
Plaintiffs,
-vs-

VILLAGE OF NEWBURGH HEIGHTS,
et al.,

.
: CASE NO. 1:13 CV 00827
:
:
: MEMORANDUM OF OPINION AND
: ORDER
:
:
:
:
:

Defendants.
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UNITED STATES DISTRICT JUDGE LESLEY WELLS
Before the Court is a motion for summary judgment filed by the defendants
Village of Newburgh Heights (“Newburgh Heights”), Patrolman Bob Hoover (“Patrolman
Hoover” or “the officer”), and Chief of Police Gabriel Barone (“Chief Barone”). The
plaintiffs Wade Huffman, Marie Jessica Huffman, and Alan Bowles have filed a brief in
opposition. For the reasons that follow, the motion will be granted as to the plaintiffs’

federal constitutional claim. Because this decision will dispose of the only claim over
which the Court has original jurisdiction, the plaintiffs’ state law claims will be dismissed
without prejudice, pursuant to 28 U.S.C. § 1367(c).
I. Background
Except where noted, the facts are not in dispute. On 5 March 2011, Patrolman
Hoover of the Newburgh Heights police department was on duty. Shortly after 6:00
p.m., while operating a marked police vehicle, Patrolman Hoover was notified by
Newburgh Heights 911 emergency dispatch of a possible child abduction. 1 The 911

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The plaintiffs provide the following transcript of the call with Newburgh Heights
dispatch:
Dispatcher:
Caller:

Dispatcher:
Caller:
Caller:
Caller:
Caller:
Caller:
Caller:
Caller:
Caller:
Caller:
Dispatcher:

Dispatcher:
943:
Dispatcher:
1618:
943:
1618:
Dispatcher:
943:

Newburgh Heights 911.
Please I need the cops at 30 at 4607 the um it’s a white truck.
4607. [sic]
He’s leaving, he’s leaving in the truck now.
What did he do?
He’s leaving.
He has my niece.
He’s leaving right now he’s going off of Gamma Rd.
Off of Gamma.
Off of Gamma.
He’s leaving right now.
He’s leaving.
He’s going toward Fleet.
He’s going toward Fleet.
I have a female on the phone something about a white truck from
Gamma avenue Washington Park Blvd towards Fleet. He’s got a
child with him that he’s not supposed to have.
I also have a Report 77 northbound, North of Harvard a vehicle is
up on the ramp.
943 I am attempting to stop that vehicle we’re East 49th
northbound approaching Fleet. Edward Queen Lincoln 7063.
Copy standby for one second.
Did he stop?
Negative. We’re still going. We’re on the overpass now.
77 North I’m at the bottom of the Fleet on ramp.
You want me to notify Cleveland?
That’s affirmative 943. Are you saying there was a child on board?

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dispatcher had received a call from a woman frantically explaining that a man in a white
truck had taken her niece. (See doc. 14). She reported that the v ehicle was leaving the
caller’s location on Gamma Road.
At that time, Patrolman Hoover was driving north on East 49th St, and he
observed a white sport utility vehicle (“the suspect vehicle”), traveling at a high rate of
speed, turn onto East 49th Street from Gamma Road. According to the defendants,
Patrolman Hoover activated his overhead lights and siren to signal the driver of the
suspect vehicle to stop.2 He notified the 911 dispatcher that he had located the suspect
vehicle and that he was attempting to stop it. The vehicle did not stop, however, but
continued north on East 49th Street to Fleet Avenue. The officer followed as the vehicle
turned onto Fleet heading eastbound.
The suspect vehicle stopped at a red light on the Fleet Avenue bridge over
Interstate 77, and the officer pulled up behind it. When the light turned green, the
suspect vehicle accelerated and pulled to the left around the traffic. Patrolman Hoover
followed, and he sought confirmation from dispatch as to whether there was a child in
the car. The dispatcher indicated that there was, apparently, since the caller reported:

Dispatcher:

943:
943:

Apparently our caller hung up. She was screaming “he got my
niece, he’s got my niece” all I know it was a white truck and ah I
was trying to get a callback number for her. [sic] Let me get
Cleveland.
He’s being erratic we’re at speeds of 70. Do you want to call it or
is there a child?
Repeat advise he just wrecked. We’re going to be at East 55th.

(Doc. 17, pp. 2-3; see also Doc. 14).
2

As discussed in the section that follows, see infra, pp. 9-10, it is not clear
precisely when, or even if, both the overhead lights and the siren were activated.

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“he’s got my niece, he’s got my niece,” before she hung up. The suspect vehicle
continued to accelerate, approaching seventy miles per hour. The posted speed limit
was twenty-five miles per hour. The officer followed, but he claims to have slowed his
vehicle hoping that the suspect also might reduce his speed. The suspect vehicle
continued at a high rate of speed and attempted a right turn at East 65th street, but the
driver lost control. The vehicle flipped over, and it struck an RTA bus shelter on the
sidewalk. The chase had lasted no more than two minutes. After a foot pursuit, the
driver of the vehicle, Russell H. Roupe, Jr., was apprehended. The vehicle was
searched, but no child was found inside.
The plaintiffs Wade Huffman and Alan Bowles were in the RTA bus shelter that
was struck by the suspect vehicle. According to the plaintiffs, after initially being
pronounced DOA at the hospital, Mr. Huffman survived and spent five days in intensive
care. Counsel says that Mr. Huffman’s physical injuries included a fracture of the right
hand, a chipped bone in the right wrist, a depressed skull fracture, and fractures around
his nose. In addition, it is claimed that fragments of Mr. Huffman’s skull punctured his
brain. Mr. Huffman’s treatment allegedly included replacement of facial tissue with
stomach tissue; sixty-six staples in his head; seventeen stiches on his face; and a plate
in his head. Since the incident, Mr. Huffman allegedly suffers from short term memory
loss, seizures, headaches, and a short-temper. Plaintiff Bowles suffered unspecified
injuries.

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Plaintiffs brought this lawsuit alleging that Patrolman Hoover, Chief Gabriel
Barone, the Village of Newburgh Heights, and Mr. Roupe 3 are liable for their injuries.
Mr. Huffman and Mr. Bowles allege, inter alia, that the defendants negligently,
recklessly, willfully, and wantonly caused injury to them by initiating and continuing the
pursuit of the suspect vehicle; that Chief Barone and the Village of Newburgh Heights
negligently, willfully, recklessly, and wantonly hired and trained Patrolman Hoover; and
that Chief Barone and the Village of Newburgh Heights negligently, willfully, recklessly,
and wantonly failed to supervise and train officers in handling pursuit situations. Mr.
Huffman and Mr. Bowles further allege, pursuant to 42 U.S.C. § 1983, that their
substantive due process rights were violated as a result of the municipal defendants’
actions. Ms. Huffman alleges a claim for loss of consortium, and the plaintiffs bring
state law tort claims against Mr. Roupe.
In support of their claims against the municipal defendants, the plaintiffs supply
evidence, in short, that when Chief Barone was hired, the Newburgh Heights police
department was fragmented, without supervision, and without leadership; that
Newburgh Heights had not implemented any training program for conducting pursuits;
and that Patrolman Hoover did not receive and could not recall receiving any training
with regard to properly conducting a pursuit. The plaintiffs also supply evidence that
Patrolman Hoover was disciplined, and ultimately terminated in September 2011, for
numerous instances of insubordination.

3

The docket reflects that Mr. Roupe is unrepresented by counsel and that
he has not been served with a copy of the summons and the complaint.
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The defendants maintain, however, that the plaintiffs’ federal constitutional claim
fails as a matter of law because the plaintiffs fail to provide any evidence that Patrolman
Hoover’s initiation and continuation of the pursuit “shocks the conscience” and so
violated the plaintiffs’ substantive due process rights. The defendants argue that Chief
Barone is not constitutionally liable because the plaintiffs provide no evidence that he
was actively involved in unconstitutional conduct. And, in the absence of an underlying
constitutional violation, the defendants argue, Newburgh Heights cannot be liable
pursuant to Monell v. New York Dept. Of Soc. Servs., 436 U.S. 658 (1978). The
defendants further argue that they are entitled to statutory immunity under R.C. § 2744
with respect to the plaintiffs’ remaining, state law claims. The issues are briefed, and
the defendants’ motion is ripe for decision.
II.
Summary judgment is warranted “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “In deciding a motion for summary judgment, this court views the
factual evidence and draws all reasonable inferences in favor of the nonmoving
party.”•McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000) (citing
Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 616 (6th Cir. 1998)).
To prevail on a section 1983 claim, a plaintiff “must establish that a person acting
under color of state law deprived [him] of a right secured by the Constitution or laws of
the United States.” Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (citing Waters v.
City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001)). A def endant may assert “the
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defense of qualified immunity, which shields government officials from ‘liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Id. (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In qualified immunity cases, the
plaintiff bears this burden; he must show that the defendant is not entitled to qualified
immunity.” Wysong v. City of Heath, 260 Fed.Appx. 848, 852 (6th Cir. 2008) (citing
Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).
When determining whether the allegedly injured party has met this burden, the
Court “typically employs a two-step analysis,” asking: “‘(1) whether, considering the
allegations in a light most favorable to the party injured, a constitutional right has been
violated, and (2) whether that right was clearly established.’” Smoak, 460 F.3d at 777
(quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005)). The
Court may consider these questions “in whatever order is appropriate in light of the
issues before [it].” Moldowan v. City of Warren, 570 F.3d 698, 720 (6th Cir. 2009).
Here, the Court begins with the first step. The constitutional standard applicable
in the present case is set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998).
The facts of Lewis involved a police chase of a motorcycle whose rider ignored the
officer’s commands to stop. The police followed closely as the operator of the
motorcycle, along with his passenger, reached speeds up to one hundred miles per
hour. When the operator of the motorcycle attempted to turn, the motorcycle flipped
over suddenly, and both the operator and the passenger were thrown from the
motorcycle. Unable to slow down in time, the pursuing police officer struck the
passenger with his cruiser, killing him. Id. at 836-37.
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The passenger’s estate brought a § 1983 claim against the officer alleging a
violation of his substantive due process rights. The Supreme Court rejected the estate’s
claim, deciding that in the context of a police chase that causes injury, the test is
whether the officer’s actions “shock the conscience.” The estate failed to meet the
standard because it was unable to supply evidence that the officer was “motivated by
an “intent to harm [the] suspects physically or to worsen their legal plight.” Id. at 836.
The Court reasoned that
[a] police officer deciding whether to give chase must balance on one hand the
need to stop a suspect and show that flight from the law is no way to freedom,
and, on the other, the high-speed threat to everyone within stopping range, be
they suspects, their passengers, other drivers, or bystanders.
Id. at 853. The Court determined that the officer’s conduct might have been reckless or
deliberately indifferent to the well-being of the fleeing motorcyclists, but it did not rise to
a level that “shocked the conscience” because:
[The officer] was faced with a course of lawless behavior for which the police
were not to blame. They had done nothing to cause [the driver’s] high-speed
driving in the first place, nothing to excuse his flouting of the commonly
understood law enforcement authority to control traffic, and nothing (beyond a
refusal to call off the chase) to encourage him to race through traffic at
breakneck speed forcing other drivers out of their travel lanes. [The driver’s]
outrageous behavior was practically instantaneous, and so was [the officer's]
instinctive response. While prudence would have repressed the reaction, the
officer's instinct was to do his job as a law enforcement officer, not to induce [the
driver’s] lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was
subject to countervailing enforcement considerations, and while [the officer]
exaggerated their demands, there is no reason to believe that they were tainted
by an improper or malicious motive on his part.
Id. at 834-35.
Following Lewis, a panel of the Sixth Circuit Court of Appeals decided Meals v.
City of Memphis, 493 F.3d 720 (6th Cir. 2007). In that case, an of ficer pursued a
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suspect automobile without turning on her lights or siren or obtaining a supervisor’s
authorization to pursue, all in violation of departmental policy. Id. at 723-24. The fleeing
driver collided with another car, killing two passengers and paralyzing the driver. Id. at
724. The estates of the deceased brought substantive due process claims, which
survived summary judgment in district court. Id. at 725-26. On interlocutory appeal, the
court of appeals reversed, after concluding that there was no evidence that the officer
intended to harm the fleeing suspect. Id. at 730. The court rejected the idea that malice
could be inferred from the officer’s violations of departmental policy. Id.
The Sixth Circuit again addressed the issue in Jones v. Byrnes, 585 F.3d 971
(2009). In Jones, officers engaged in a high speed pursuit of a suspect vehicle whose
occupants were suspected of armed robbery. Id. at 973. At some point during the
pursuit, the suspect driver extinguished his headlamps in an attempt to evade the
officers, and he eventually collided with an oncoming car. Id. The driver of the
oncoming car was killed, and his estate sued the police officers claiming that the
officers’ actions violated the decedent’s substantive due process rights. Id. The Sixth
Circuit rejected the estate’s constitutional claim, concluding that “the estate has not
produced any evidence that [the officers] were acting with any intent to harm the
suspects instead of trying to apprehend what they reasonably believed to be dangerous
criminals.” Id. at 978.
Here, in light of the above-described case law and the evidence on the record,
the plaintiffs’ substantive due process claim cannot survive summary judgment, since
the plaintiffs have failed to provide any evidence that Patrolman Hoover intended to
harm the driver of the suspect vehicle (or anyone else). The plaintiffs contend that the
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officer “should have pulled in front of Roupe’s vehicle or aborted the chase on a busy
road. . . ”; that the mere possibility that there was a child in the suspect vehicle makes
Patrolman Hoover’s conduct conscience shocking; and that the pursuit should have
been aborted as soon as it was learned that a child may have been in a dangerous
situation. (Doc. 17, p. 10). In the Court’s view, none of these arguments demonstrate an
intent on the part of Patrolman Hoover to cause harm to the driver of the suspect
vehicle; rather, the plaintiff’s arguments amount to little more than impermissible
second-guessing of the officer’s discretionary decision making.
The plaintiffs also claim that inconsistencies in the factual record preclude
summary judgment. The question, as the plaintiffs see it, is whether Patrolman Hoover
was pursuing the suspect vehicle with lights and sirens activated or not, and the
plaintiffs point out a number of apparent contradictions in Patrolman Hoover’s
testimony. For instance, in his deposition, Hoover stated that he activated only his
overhead lights on seeing the suspect vehicle, but in his affidavit he stated that he
activated both lights and siren; and at another point in his deposition, Hoov er claimed
he used the siren intermittently, and elsewhere he stated that he activated his lights and
siren upon receiving the call from dispatch. While the Court agrees with the plaintiffs
that the facts are unclear on this particular point, it is not apparent that these
discrepancies are material to the question presented. The issue here is whether the
record contains evidence of Hoover’s intent to harm the suspect. When and whether
Hoover’s lights and siren were activated does not bear on this question. As described
above, the Sixth Circuit faced a similar issue in Meals, where the defendant officer
pursued a suspect without authorization and without activating lights and siren. Meals,
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493 F.3d at 730-31. In that case, the court concluded that these v iolations of
departmental policy did not demonstrate an intent to harm, and it concluded that the
officer’s actions did not rise to the level of conscience-shocking. Id.
The plaintiffs also maintain that summary judgment is inappropriate because
there is evidence that Patrolman Hoover was not in command of all the facts when he
made the decision to pursue the suspect vehicle. The plaintiffs point to evidence that
Patrolman Hoover continued his pursuit on the belief that there was a child in the
suspect vehicle, even though he was not certain whether this was the case. The
plaintiffs contend this demonstrates poor judgment on the part of the officer. Assuming
the plaintiff’s characterization is correct, the Court is unconvinced that this evidence
demonstrates an intent to harm on the part of Patrolman Hoover. In the Court’s view,
Patrolman Hoover was faced with the difficult decision of whether to pursue an
individual whom he reasonably believed committed a crime and who was evading the
officer’s attempts to stop him. The evidence paints a picture of a quickly developing
situation that reached a climax in under two minutes. While the officer might have
chosen differently, it is not apparent, based on the evidence, that the decision he made
arose from any improper or malicious motive.
In sum, the Court concludes that the plaintiffs have failed to supply any evidence
that Patrolman Hoover violated their constitutional rights when he initiated and
continued his pursuit of the suspect vehicle. Patrolman Hoover is accordingly entitled to
qualified immunity on this claim. The plaintiffs’ constitutional claim against Chief Barone
also fails as a matter of law, since the plaintiffs fail to set forth facts showing that he
was actively engaged in unconstitutional behavior. See Gregory v. City of Louisville,
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444 F.3d 725, 751 (6th Cir. 2006). Further, because there is no ev idence of an
underlying constitutional violation, the plaintiffs’ Monell claim against the City of
Newburgh Heights fails as a matter of law. See City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986). Summary judgment will accordingly be granted in favor of all
defendants as to the plaintiffs’ substantive due process claim.
When, as here, the Court disposes of all claims over which it has original
jurisdiction, it may decline to exercise supplemental jurisdiction over the remaining
claims. See 28 U.S.C. § 1367(c). City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 173 (1997). “[W]hen deciding whether to exercise supplemental jurisdiction, ‘a
federal court should consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience, fairness, and comity.’” City of
Chicago v. International College of Surgeons, 522 U.S. 156, 173 (1997) (quoting
Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). The Sixth Circuit has held
that “[w]hen all federal law claims are dismissed before trial, the balance of
considerations usually will point to dismissing the state law claims ....” Musson
Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1255 (6th Cir.1996). Such is
the case here. Having considered the relevant factors, the Court declines to exercise
supplemental jurisdiction over the plaintiffs’ state law claims, which will accordingly be
dismissed.

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III.
For the reasons stated above, the defendants’ motion for summary judgment is
granted in part, specifically as to the plaintiffs’ substantive due process claims. The
remainder of the plaintiffs’ claims are dismissed without prejudice.

IT IS SO ORDERED.
/s/ Lesley Wells
UNITED STATES DISTRICT JUDGE
Date:

27 July 2015

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