Folks v. Petitt et al

Filing 81

Memorandum Opinion and Order granting in part and denying in part defendant Aaron Petitt's Motion for summary judgment. (Related doc. # 70 ). Signed by Magistrate Judge William H. Baughman, Jr., on 5/23/2016. (S,MD)

Case: 1:13-cv-02292-WHB Doc #: 81 Filed: 05/23/16 1 of 21. PageID #: 662

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
REGINALD FOLKS,
Plaintiff,
v.
AARON PETITT, et al.,
Defendants.

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CASE NO. 1:13 CV 2292

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER

Introduction
Before me1in this matter regarding Reginald Folks’s claim that Cleveland police
officer Aaron Petitt violated 42 U.S.C. § 1983 in using excessive force to arrest Folks, as
well as violated state law by committing assault and battery and intentionally inflicting
emotional distress during that same arrest,2 is a motion by Petitt for summary judgment.3
Folks has opposed the motion,4 and Petitt has replied to that opposition.5 The City of
Cleveland, which was originally named as a defendant, was earlier dismissed from the case.6
1

The parties have consented to my exercise of jurisdiction. ECF # 26.

2

ECF # 1.

3

ECF # 70.

4

ECF # 73.

5

ECF # 78.

6

ECF # 16. The complaint also names five “John Doe” defendants, who have neither
been identified or served since the complaint was filed in October, 2013. As will be discussed
below, these defendants will be dismissed.

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Petitt’s motion in limine to exclude the expert report and testimony of Dr. Judie Shields is
addressed separately.7
For the reasons that follow, Petitt’s motion for summary judgment will be granted in
part and denied in part as is more fully set forth below.
Facts
The facts, which must be viewed in the light most favorable to Folks, were stated by
Judge Wells in her opinion dismissing the City of Cleveland from this case, and are re-stated
here.
The plaintiff Reginald Folks was raised in Kinston, North Carolina. For
the past eight years, he was a resident of Sagamore Hills, Ohio. Mr. Folks was
employed as a Patient Access Specialist at Case Medical Center, and as a
Legal Administrative Specialist at the Department of Veteran Affairs.
Defendant Officer Aaron Petitt was, at all times relevant, an employee of the
City of Cleveland, Ohio, Police Department. Defendant City of Cleveland
(“Cleveland”) is a unit of local government organized under the laws of the
State of Ohio.
At roughly, 10:30 a.m. on 27 October 2012, Officer Petitt conducted a
traffic stop of Mr. Folks on Chester Avenue near East 79th Street in Cleveland,
Ohio. During the stop, Mr. Folks asked Officer Petitt why he had been pulled
over, and the officer explained that after running Mr. Folks’ license plates, he
determined that Mr. Folks’ license had been suspended. Mr. Folks, in fact, did
not have a suspended license. Nonetheless, Officer Petitt handed Mr. Folks a
citation and told him to sign it.
Mr. Folks, knowing that his license was not suspended, explained to
Officer Petitt that there must be a mistake. Suddenly enraged, Officer Petitt
placed Mr. Folks under arrest and ordered him out of the car. Mr. Folks tried
to explain to Officer Petitt that he was merely asking a question about the
mistake regarding his license. Officer Petitt again demanded that Mr. Folks

7

ECF # 74.

2

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exit his car and repeatedly told him to “act like [an] adult” Mr. Folks complied
with Officer Petitt’s demand, and he began to get out of his car.
When Mr. Folks opened the door, Officer Petitt grabbed Mr. Folks’ left
arm and pulled him out of the car. In doing so, Officer Petitt twisted Mr.
Folks’ left arm, which caused Mr. Folks immediate and tremendous pain.
While continuing to twist his arm, Officer Petitt punched Mr. Folks in the area
of his right eye. Officer Petitt slammed Mr. Folks’s head against his car and
cuffed his hands tightly behind his back.
The backseat of Officer Petitt’s cruiser was oriented in such a way that
there was not enough room for Mr. Folks to step into it. In the process of
trying to enter the police cruiser, Mr. Folks’ foot became wedged between the
front and back seats. With his hands cuffed behind his back, Mr. Folks was
unable to free his foot. Further affecting his ability to unwedge himself was
the fact that his ankle had six metal pins in it, apparently from an earlier
surgery. Mr. Folks told Officer Petitt that his medical condition was affecting
his ability to extricate his foot.
At this time, a second, unidentified officer arrived at the scene and
assisted Officer Petitt in placing Mr. Folks into the back of the police cruiser.
The second officer went to the other side of the car and attempted, with Officer
Petitt’s help, to pull Mr. Folks into the cruiser, which caused Mr. Folks
additional pain. Once the officers had stuffed Mr. Folks into the back of the
cruiser, he was taken to the Justice Center.
Mr. Folks was jailed at 11:30 A.M. and released the same day at 7:45
P.M. The charges for driving under suspension were dismissed for want of
prosecution on 14 November 2012.
The next morning Mr. Folks went to the hospital to receive treatment
for the injuries he allegedly sustained from Officer Petitt’s use of force. A
physician diagnosed Mr. Folks as having injuries, including, but not limited to,
sustained facial and scalp contusions and strained muscles. The plaintiff
alleges that these injuries were caused by Officer Petitt and the other
unidentified officer.
On 16 October 2013, Mr. Folks filed this lawsuit. The complaint
asserts claims of excessive force in violation of the Fourth Amendment of the
United States Constitution pursuant to 42 U.S.C. § 1983 against Officer Petitt,
the City of Cleveland, and five John Does. Mr. Folks also brings state law

3

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claims of assault and battery and intentional infliction of emotional distress
against Officer Petitt only. Mr. Folks seeks compensatory and punitive []
damages and reasonable attorney fees, costs, and disbursements.8
Analysis
A.

Standard of review - summary judgment
The court should grant summary judgment if satisfied “that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of
law.”9 The moving party bears the burden of showing the absence of any such “genuine
issue”:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions answers to interrogatories, and
admissions on file, together with affidavits, if any,’ which it believes
demonstrates the absence of a genuine issue of material fact.10
A fact is “material” only if its resolution will affect the outcome of the lawsuit.11
Determination of whether a factual issue is “genuine” requires consideration of the applicable

8

ECF # 16 at 2-3.

9

Fed. R. Civ. P. 56(c).

10

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c)).

11

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

4

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evidentiary standards.12 The court will view the summary judgment motion “in the light most
favorable to the party opposing the motion.”13
The court should not grant summary judgment if a party who bears the burden of
proof at trial does not establish an essential element of his case.14 Accordingly, “[t]he mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.”15 Moreover,
if the evidence presented is “merely colorable” and not “significantly probative,” the court
may decide the legal issue and grant summary judgment.16
In most civil cases involving summary judgment, the court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party]
is entitled to a verdict.”17 But if the non-moving party faces a heightened burden of proof,
such as clear and convincing evidence, it must show that it can produce evidence which, if
believed, will meet the higher standard.18

12

Id. at 252.

13

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

14

McDonald v. Petree, 409 F.3d 724, 727 (6th Cir. 2005) (citing Celotex Corp., 477
U.S. at 322).
15

Leadbetter v. Gilley, 385 F.3d 683, 689 (6th Cir. 2004) (quoting Anderson, 477 U.S.
at 248-49).
16

Anderson, 477 U.S. at 249-50 (citation omitted).

17

Id. at 252.

18

March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001).

5

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Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover.19 The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.”20 The text of
Fed. R. Civ. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of
his pleading, but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial.

“In other words, the movant can challenge the opposing party to ‘put up or shut up’ on a
critical issue.”21
Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has
concurred that “‘it is well settled that only admissible evidence may be considered by the trial
court in ruling on a motion for summary judgment.’”22 Rule 56(e) also has certain, more
specific requirements:
[it] requires that affidavits used for summary judgment purposes be made on
the basis of personal knowledge, set forth admissible evidence, and show that
the affiant is competent to testify. Rule 56(e) further requires the party to
attach sworn or certified copies to all documents referred to in the affidavit.
19

Anderson, 477 U.S. at 256.

20

Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

21

BDT Prods. v. Lexmark Int’l, 124 F. App’x 329, 331 (6th Cir. 2005).

22

Wiley v. United States, 20 F.3d 222 (6th Cir. 1994) (quoting Beyene v. Coleman Sec.
Servs., 854 F.2d 1179, 1181 (9th Cir. 1988)).

6

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Furthermore, hearsay evidence cannot be considered on a motion for summary
judgment.23

But the district court may consider evidence not meeting this standard unless the opposing
party affirmatively raises the issue of the defect. The burden is on the opposing party to
object to the improper evidence; failure to object constitutes a waiver.
If a party fails to object before the district court to the affidavits or evidentiary
materials submitted by the other party in support of its position on summary
judgment, any objections to the district court’s consideration of such materials
are deemed to have been waived, and [the Sixth Circuit] will review such
objections only to avoid a gross miscarriage of justice.24
As a general matter, the judge considering a motion for summary judgment need
examine “[o]nly disputes over facts that might affect the outcome of the suit under governing
law.”25 The court will not consider non-material facts, nor will it weigh material evidence to
determine the truth of the matter.26 The judge’s sole function is to determine whether there
is a genuine factual issue for trial; this does not exist unless “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.”27
In sum, proper summary judgment analysis entails:

23

Id. at 225-26 (citations omitted).

24

Id. at 226 (citations omitted).

25

Anderson, 477 U.S. at 248.

26

Id. at 249.

27

Id.

7

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the threshold inquiry of determining whether there is the need for a trial –
whether, in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be resolved
in favor of either party.28
B.

Application of standards - the motion will be granted in part and denied in part
Petitt asserts that he is entitled to qualified immunity as to the federal claim and

statutory immunity as to the claim under Ohio law.29 This issue will be addressed separately.
1.

Qualified immunity
As to claims of qualified immunity, the Sixth Circuit has stated the standard of review

to be as follows:
Section 1983 creates a private right of action against officials,
who under the color of state law, deprive individuals of their
constitutional rights. 42 U.S.C. § 1983. Here, the police officers
do not dispute that they were acting under the color of state law
at the time of the incident. Instead, they maintain that they did
not deprive Brown of his constitutional rights, and they raise the
defense of qualified immunity.
Qualified immunity “shields officials from civil liability so long
as their conduct ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Mullenix v. Luna –U.S. –, 136 S. Ct. 305, 308, 193
L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S.
223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). A qualified
immunity-inquiry involves two questions: whether defendants
violated a constitutional right and whether that right was clearly
established. Pearson, 555 U.S. at 232, 129 S.Ct. 808. On
summary judgment, the court must analyze these questions after
construing the facts in the light most favorable to the party

28

Id. at 250.

29

ECF # 70 at 4.

8

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asserting the injury and drawing all reasonable inferences in that
party’s favor. Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct.
1769, 167 L.Ed.2d 686 (2007); see also Ortiz ex rel. Ortiz v.
Kazimer, 811 F.3d 848, 850-51 (6th Cir. 2016). These questions
may be answered in any order; if either one is answered in the
negative, then qualified immunity protects the official from civil
damages. Pearson, 555 U.S. at 236, 129 S.Ct. 808; Martin v.
City of Broadview Heights, 712 F. 3d 951, 957 (6th Cir. 2013).30
Further, as to qualified immunity in matters alleging excessive force, the Sixth Circuit
has stated the applicable law as follows:
To determine whether officers’ use of force in effecting [Sic] an
arrest is excessive and thus in violation of the Fourth
Amendment, a court must consider “whether the officers’
actions are objectively reasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” Graham v. Connor, 490 U.S.
386, 397, 109 S.Ct. 1865, 104 L.Ed. 2d 443 (1989) (internal
quotation marks omitted). The court makes this evaluation
“from the perspective of a reasonable officer on the scene”
because “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.” id. at 396-397, 109 S.Ct. 1865. “At the
summary judgment stage, . . . once we have determined the
relevant set of facts and drawn all inferences in favor of the
nonmoving party to the extent supportable by the record, . . . the
reasonableness of [the defendants’] actions . . .is a pure question
of law.” Scott, 550 U.S. at 381 n. 8, 127 S.Ct. 1769 (emphasis
removed); Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th
Cir. 2009).
This evaluation is not confined to the facts and circumstances
confronting the officers, however. It also considers the effects
of their actions, as any inquiry into a violation of the Fourth
Amendment “requires a careful balancing of the ‘nature and

30

Brown v. Chapman, 814 F.3d 447, 457 (6th Cir. 2016).

9

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quality of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at
stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting
Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d
1 (1985)); see also United States v. Place, 462 U.S. 696, 703,
103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). “[T]he ultimate question
is whether the totality of the circumstances justifies a particular
sort of seizure.” Ciminillo v. Stretcher, 434 F.3d 461, 467 (6th
Cir. 2006) (internal quotation marks omitted). 31
2.

Factual allegations
As Judge Wells noted in the summary of facts, the federal excessive force claim arises

out of the following allegations:
(1) that as Folks was getting out of his car in response to Petitt’s command, Petitt
“grabbed Folks arm and pulled him out of his car ... in so doing, Petitt twisted Folks’ left arm
which caused Folks immediate and tremendous pain;”32
(2) that “while continuing to twist his arm, Petitt punched Folks in the area of his right
eye;”33
(3) that Petitt then “slammed Folks’ head against his car and cuffed his hands tightly
behind his back;”34
(4) that in the process of trying to enter the police cruiser “Folks’ foot became wedged
between the front and back seat” such that Folks was “unable to free his foot,” which
31

Id. at 458-59.

32

ECF # 16 at 3.

33

Id.

34

Id.

10

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situation was aggravated by the fact, relayed to Petitt, that Folks’ ankle had six pins in it from
an earlier surgery;35
(5) an additional officer assisting Petitt tried to pull Folks into the cruiser, causing
additional pain;36 and
(6) a physician diagnosed Folks the next day as “having injuries, including, but not
limited to, sustained facial and scalp contusions and strained muscles,” which Folks asserts
were caused by Folks’ conduct and that of the assisting officer.37
3.

Analysis

a.

Rule 56 evidence
Folks’s description of his arrest in his deposition testimony is that Petitt

“snatched”38or “pulled”39 Folks out of his vehicle, during which event Petitt “grabbed”40
Folks’s arm while “spinning”41 Folks around so that Petitt could take Folks toward the back

35

Id.

36

Id.

37

Id. at 3-4.

38

The description that Petitt “snatched” Folks out of the car is used no fewer than nine
times over a span of four pages of testimony. ECF # 70, Attachment 2 at 37-41. The term was
never defined by Folks who was not asked to define it.
39

Id. at 39.

40

Id. at 37, 40.

41

Id. at 40, 41.

11

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of Folks’s vehicle,42 where Petitt “pushed”43 Folks “face first”44 against the back windshield
of Folks’s vehicle45prior to handcuffing Folks.46
A review of Folks’s deposition testimony demonstrates during Folks’s lengthy
recounting of the individual details of his arrest, which covers 17 pages in the deposition
transcript,47there is no mention of any punches being thrown, as is alleged in the complaint.48
I further note, again in contrast to the allegations of the complaint, that there is also no
deposition testimony by Folks that the handcuffs had been too tight on his wrists.49
As the arrest sequence progressed to where Folks, now handcuffed, was being placed
into the zone car, Folks’s Rule 56 testimony is that he informed Petitt upon initially viewing
the available space in the back seat that “I have a plate and six pins in my leg, and I can’t get
in here.”50At that moment, Folks’s testimony is that two other officers arrived on the scene

42

Id. at 37, 40, 41. Folks alternately referred to his vehicle as his “truck” (id. at 37,
40, 41, 55) and his “car” (id. at 39, 41).
43

Id. at 37, 41.

44

Id.

45

Id.

46

Id.

47

Id. at 37-54.

48

See, ECF # 1 at 5 ¶ 31 (“While continuing to twist Mr. Folks [sic] arm, Defendant
Petitt punched Mr. Folks in the area of his right eye.”).
49

Id. at ¶ 32.

50

ECF # 70, Attachment 2 at 44.

12

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to assist Petitt, and that, with one on each side of the zone car, “one [officer] pulled me in
while the other one is pushing me in[to] the back seat of Officer Petitt’s car.”51Specifically,
Folks testified that he was having difficulty entering the zone car, and in that regard, he had
partially entered the back seat area in a way that “was putting pressure on my right ankle
where I have a plate and six pins.”52
Although Folks testified that he alerted Petitt to the presence of surgical repairs in his
ankle, and further testified that his ankle was under “pressure” as he was “pulled”53 and/or
“pushed”54 into the back seat, there is no Rule 56 deposition testimony that Folks was
specifically articulating contemporaneous complaints of great pain55 or insisting that
alternative means be used to help him into the zone car, nor contending that he had been
placed in an unusual posture or position that gave rise to continuous pain.56

51

Id.

52

Id. at 46.

53

Id. at 44, 45.

54

Id.

55

Later in his deposition Folks testified that when questioned about the complaints
he had when he went to the hospital shortly after the incident: “I never complained about my
leg except when they put me in the car, but that wasn’t any of the chief complaint or any
assessment that was done when I went to the emergency room on October 29, 2012.” Id. at
62.
56

See, id. at 46-47. “Q. So it would be fair to say that the first point in time that you
noticed the other two officers is as your foot is being put in the car and you are voicing your
concern about your ankle – was it an ankle injury, foot injury? A. I was informing the
officers about my foot injury.”

13

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Further, to the extent this assertion concerning the way Folks was placed into the zone
car alleges claims against unidentified John Doe officers who actually pushed or pulled Folks
into the car, these defendants have never been identified or served. As is discussed in a
separate order entered contemporaneously, the defendants have been granted summary
judgment as to all claims asserted against them and have been dismissed from the case.
Thus, Petitt is the only defendant before me in this matter, and, as discussed above,
the Rule 56 evidence concerning Petitt in this regard is simply that he was made aware that
Folks had a surgically repaired ankle or leg. There is no evidence in this record that Petitt
was directly told that Folks had been placed in a painful situation, nor that Folks had
specifically asked that alternative means be utilized in placing him into the zone car, which
request had been refused. As such, Petitt’s motion for summary judgment as to this element
of the claim is granted.
As to injuries, the law of the Sixth Circuit is clear that the relevant consideration in
cases alleging excessive force is not the extent of the injury, but whether the officer has
subjected a detainee to “gratuitous violence.”57 In that regard, even where the physical
contact between the two parties did not leave “excessive marks” or “cause extensive physical
damage” to the complaining victim, that party may nevertheless maintain an action for
excessive force under Section 1983.58

57

Mallin v. City of Eastlake, 755 F.Supp.2d 819, 837 (N.D. Ohio 2010)(internal
citation and quotation omitted).
58

Id. (citation omitted).

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Here, Folks has shown more than enough to proceed. Folks was shown during his
deposition a copy of the photograph he alleges depicts his injuries.59 Although Petitt now
argues that Folks’s injuries were “so minor [that] Folks himself could not identify signs of
injury when shown the photos in his deposition,”60 in fact Folks’s repeated reason for not
specifically identifying his injuries in the photo was that the picture was “not a clear
picture;”61 a “terrible picture;”62 “all a blur,”63 and not a “great copy of the pictures we gave
[the defense], not at all.”64
Far from indicating, as Petitt suggests, that Folks himself essentially conceded that his
alleged facial injuries were so minor or insubstantial as to be virtually invisible, a plain
reading of Folks’s testimony is that he clearly stated that “there were contusions in the
pictures that we gave that were very clear. You could see the contusions on my face. And if
you look at my face, you can see that the area is still there. It has not gone away.”65 But,

59

Id. at 57.

60

ECF # 78 at 9.

61

ECF # 70, Attachment 2 at 57.

62

Id. at 58.

63

Id. at 59.

64

Id.

65

Id. at 57.

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Folks testified, despite the clarity of the original photo, the pictures he was presented with
at the deposition were “terrible copies” of the original pictures.66
Moreover, Folks testified at his deposition that when he was “slammed”67 into the
back windshield, “it caught my shoulder, it caught my face, it caught pretty much my face
and upper body,”68 such that he was diagnosed at the hospital emergency room with “facial,
neck and head contusions.”69
In addition to this claim of physical injury, Folks asserts in the complaint that his
injuries from the conduct he alleges are “not limited to”70 the facial and scalp contusions that
are purportedly depicted in the photographs from the emergency room. To that end, he
submitted an expert report from Julie Shields, Ph.D., a psychologist, that goes to the presence
of PTSD.71 That report was the subject of a motion in limine filed by Petitt72 which was
granted in part and denied in part in a separate entry issued contemporaneously with this
opinion.

66

Id. at 59.

67

Id. at 63.

68

Id.

69

Id. at 62.

70

ECF # 1 at 6.

71

ECF # 73, Attachment 1.

72

ECF # 74.

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b.

Petitt is not entitled to qualified immunity such as to warrant summary judgment on
all aspects of the arrest, but is entitled to summary judgment on other claims
As has been discussed, there is no Rule 56 evidence in this record to support any

claims for excessive force arising out of any punch thrown in the arrest, nor arising out of
any claim of injury or excessive pain to Folks’s ankle/leg/foot arising out of his being placed
into the zone car. Thus, because there is a total lack of Rule 56 evidence to support these
claims, Petitt is entitled to summary judgment on these allegations.73
But, the Rule 56 evidence, construed most favorably to Folks, shows that Petitt would
be liable in this case, and as regards the remaining claims, for using unreasonable, excessive
force as a matter of law. In particular, it would be excessive force if it were established to a
jury that Petitt “snatched,” or “pulled” an otherwise cooperative, non-violent Folks out of his
vehicle before then “slamming” or “pushing” Folks face first into the back windshield of
Folks’s vehicle such that it produced facial, neck and head injuries that were visible to
examining physicians in a hospital emergency room, and are shown on photographs taken
at the time.
While it is true that the law recognizes that officers should not be second-guessed
about split-second decisions made in the context of circumstances that are “tense, uncertain
and rapidly evolving,”74 a reasonable officer in Petitt’s situation would have been on notice

73

There is no Rule 56 evidence here that would impose liability on Petitt for not
intervening to stop the other, assisting officers from allegedly using excessive force in
placing Folks into the zone car. See, Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982).
74

Graham, 490 U.S. at 396-97.

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that there is no warrant in the law for slamming or pushing a non-violent, co-operative
detainee, stopped for a non-violent offense and where events were not fast-moving or
confusing, face-first into a windshield.75 Petitt’s attempt to explain or justify this action as
merely unintentional or accidental contact which arose incidentally to placing Folks against
his vehicle so as to apply handcuffs76 is, at best, a jury argument as to whether or not the act
Folks repeatedly described as “pushing” or “slamming” was actually not intentional.
As to the Ohio law claim alleging that Petitt is liable for assault and battery, the law
is well-settled that where a genuine issue of material fact exists as to whether an officer’s use
of force was reasonable, a genuine issue of material fact will also exist as to whether the
officer is liable for assault and battery.77 Thus, for the reasons stated above, Petitt is not
entitled to statutory immunity on the claim of assault and battery, nor is he entitled to
summary judgment.
But, in regard to the Ohio law claim for intentional infliction of emotional distress,
a necessary element to establishing a claim of intentional infliction of emotional distress in

75

Mallin, 755 F.Supp.2d at 838 (citations omitted). Based on Sixth Circuit decisions
as of 2010, a reasonable officer would have been “on notice that slamming [the plaintiff’s]
face into a police car was unlawful by this Circuit’s numerous decisions holding that the
force alleged to have been used would be unreasonable where the suspect was slammed
against a vehicle or other stationary object.”
76

ECF # 70 at 11.

77

Ward v. Cnty. of Cuyahoga, 721 F.Supp.2d 677, 694 (N.D. Ohio 2010)(citations

omitted).

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Ohio is that the actor’s conduct be “outrageous and extreme beyond all bounds of decency.”78
The Sixth Circuit has noted that establishing a prima facie case of intentional infliction of
emotional distress under Ohio law is difficult, because “to say that Ohio courts narrowly
define extreme and outrageous conduct would be an understatement.”79 Judge Oliver
concluded in Norman that an officer who hurriedly placed a detainee in handcuffs and then
forced her right arm back “really hard” such that the arm was broken, did not intentionally
inflict emotional distress as a matter of law because, whatever else such conduct may be, it
was not “outrageous and extreme beyond all bounds of decency and subsequently cannot be
characterized as utterly intolerable in a civilized community.”80
As has been discussed above, that to the degree that this claim of intentional infliction
of emotional distress goes to words or actions of unidentified John Doe officers and not the
conduct or words of Petitt himself, those John Doe officers have been granted summary
judgment as to all claims against them in a separate order that is issues contemporaneously
with this Order.
Here, although a jury question remains as to whether Petitt used excessive force in the
arrest when Folks’s face and head came in contact with the windshield, that act alone, as
Norman indicates, would not give rise to a claim for intentional infliction of emotional

78

Norman v. City of Lorain, 2006 WL 3337466, at * 2 (N.D. Ohio Nov. 16,
2006)(citation omitted).
79

Id. (citation omitted).

80

Id. (emphasis original).

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distress under Ohio law. Moreover, although as concerns this claim Folks relies a great deal
on his testimony about disrespectful,81 threatening82 or crude83 language directed at him by
Petitt or other officers. Similarly, merely disrespectful, crude or even mildly threatening
language by police officers in course of making an arrest or transporting a detainee to a
booking facility is not so outrageous and extreme as to be beyond all bounds of decency and
so utterly intolerable in a civilized community. While such conduct is by no means to be
encouraged or held out as exemplary, neither is it, of itself, particularly unusual or
shocking.84
By resolving this claim on the grounds stated above, it should not be understood that
no consideration was afforded to Folks’s allegation that he has suffered from PTSD as a
81

ECF # 70, Attachment 2 at 48 (two officers were “laughing” at Folks); 50 (officer
“screaming and hollering” told Folks “just shut up, shut up ... you’re going to jail”).
82

Id. at 41 (Petitt told Folks “you’re going to jail); 51 (supervisor was “very, very”
close of Folks’s face while yelling at him); 52 (supervisor “never asked me if I was okay ...
he was just in my face screaming at me, saying ‘Shut up. If you talk you just make things
worse’”).
83

Id. at 35, 36, 37 (Petitt called Folks a “smart ass).

84

The facts here differ from those in Hayward v. Cleveland Clinic Foundation, 759
F.3d 601 (6th Cir. 2014) upon which Folks relies. Specifically, Hayward details a prolonged
“reign of terror” by police where five officers first pounded on the door to a locked home,
and then after the homeowner refused entry, forced their way inside by means of shattering
a window with the butt of a shotgun before beginning to blindly fire their tasers inside. Once
the subject was subdued with the taser, the officers took him outside where they continued
to beat him with their batons, lick him in the head, and continuously taser him for an
excruciating thirty seconds, all while using racial slurs, before finally arresting him. Id. at
605-06. Compared to the prolonged, brutal assault detailed in Hayward, Folks’s complaint
about being laughed at or being called a smart ass or told to shut up is not meaningfully
similar.

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result of his encounter.85 But, to make out a case of intentional infliction of emotional
distress, it is not enough that the conduct produce even a severely negative effect, but rather
the conduct itself must “rise[] to a level of outrageousness necessary to permit recovery.”86As
detailed above, the “mere insults, indignities, threats, annoyances, petty oppressions”87
alleged by Folks are not sufficient to support a claim in this regard.
Conclusion
Accordingly, for the reasons stated, Petitt’s motion for summary judgment is granted
in part and denied in part as is more fully detailed above.
IT IS SO ORDERED.
Dated: May 23, 2016

85

s/ William H. Baughman, Jr.
United States Magistrate Judge

ECF # 73 at 21.

86

Hayward, 759 F.3d at 619 (quoting Baab v. AMR Servs. Corp., 811 F.Supp. 1246,
1269 (N.D. Ohio 1993)).
87

Hayward, 759 F.3d at 619 (internal quotation and citation omitted).

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