Smith v. City of Lorain et al
Filing
56
Opinion and Order. Defendants' Motion for Summary Judgment (Related doc # 46 ) is granted in part and denied in part. Judge Christopher A. Boyko on 7/11/2018. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PELE SMITH,
Plaintiff,
Vs.
CITY OF LORAIN, ET AL.,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO.1:16CV2248
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendants City of Lorain, Chief Cel Rivera and
Officers Michael Gidich, Timothy Thompson, Miguel Salgado and Zachary Ferenec’s
(collectively, “Defendants”) Motion for Summary Judgment. For the following reasons, the
Court grants Defendants’ Motion in part and denies it in part.
This case arises out of the September 4, 2014 arrest of Plaintiff Pele Smith (“Smith”).
Smith alleges § 1983 Claims for Excessive Force in Violation of the Fourth Amendment,
False/Wrongful Arrest/Imprisonment in Violation of the Fourth and Fourteenth Amendments
and City Customs and Policies Causing Constitutional Violations. Smith also alleges statelaw claims for Gross Negligence and Negligent Retention and/or Supervising.
Background Facts
According to Smith’s Complaint, Defendant Officers Timothy Thompson
(“Thompson”) and Michael Gidich (“Gidich”) were on patrol in the area of East 34th Street in
the City of Lorain, Ohio (the “City”) on September 4, 2014. Compl. ¶¶ 19-20. Thompson
and Gidich decided to stop Smith while Smith was walking along East 34th Street. Compl. ¶¶
19, 21. There is some disputed evidence that the officers had received an anonymous tip that
Smith was dealing drugs out of his home, which was in the area. Smith complied and walked
over to the vehicle in a non-aggressive manner, yet the officers violently grabbed Smith and
took him to the ground. Compl. ¶¶ 22-24. Gidich contends that he witnessed Smith
swallowing drugs in an effort to conceal them, which is why Smith was taken to the ground.
Once on the ground, the officers handcuffed Smith and told him to sit on the curb near their
police car, which Smith did. Compl. ¶¶ 25-26.
Shortly thereafter, Defendant Officer Zachary Ferenec (“Ferenec”) arrived on the
scene and approached Smith, Thompson and Gidich. Compl. ¶ 26. Ferenec’s police car was
equipped with a dash cam that captured footage of the rest of the events. Around the same
time, Defendant Officer Miguel Salgado (“Salgado”) also arrived on the scene. Compl. ¶ 32.
Ferenec, Thompson and Gidich raised Smith to his feet and Ferenec walked Smith toward
Ferenec’s police car. Compl. ¶ 27. When Ferenec and Smith got to the car, Ferenec, without
provocation, slammed Smith’s chin into the windshield of the car with so much force that the
windshield shattered. Compl. ¶ 28. According to Ferenec, Smith was resisting Ferenec,
which is why the officer felt it was necessary to use force to get Smith to the car.
Smith also alleges that the City and Police Chief Cel Rivera (“Rivera”) implemented
customs and policies causing officers to violate citizens’ Fourth and Fourteenth Amendment
2
rights. Compl. ¶ 51. In 2012, the U.S. Department of Justice (“DOJ”) investigated the City
of Lorain Police Department (“LPD”) as a result of allegations of excessive force and sexual
misconduct committed by LPD officers. The DOJ found that at the time of their investigation
(2012), there was not a continuing pattern of excessive force, but that such a pattern had
existed in previous years. The DOJ issued recommendations to the City and LPD in order to
prevent such a pattern from re-emerging.
In connection with his September 4, 2014 arrest, Smith pled guilty to Resisting Arrest,
Tampering with Evidence and Obstructing Official Business.
Smith alleges: (1) Excessive Force in Violation of the Fourth Amendment against
Ferenec, Thompson and Gidich; (2) False/Wrongful Arrest/Imprisonment in Violation of the
Fourth and Fourteenth Amendments against Ferenec, Thompson and Gidich; (3) Customs and
Policies Causing Constitutional Violations against the City and Rivera; (4) Gross Negligence
against Ferenec, Thompson, Gidich and Salgado and (5) Negligent Retention and/or
Supervising against the City and Rivera.
Defendants’ Motion
Defendants urge the Court to consider the Supreme Court case Heck v. Humphrey, 512
U.S. 477 (1994), which Defendants contend bars Smith’s § 1983 Excessive Force and
False/Wrongful Arrest/Imprisonment claims because allowing recovery on these grounds
would imply the invalidity of Smith’s Resisting Arrest conviction.
Even if Heck does not bar Smith’s Excessive Force Claim, Defendants contend that
the officers are all entitled to qualified immunity on all counts. Furthermore, Ferenec’s use of
force was reasonable and the Court should give a high level of deference to the officers’
3
determinations at the scene. Lastly, Smith has no claim against Salgado because he neither
used force nor failed to intervene. Salgado did not have enough time to intervene.
Defendants also contend that Smith does not have a basis for his Monell Claim against
the City and Rivera because Smith’s constitutional rights were not violated. Furthermore, his
allegations are based on conclusory statements that have not been backed up by evidence.
With regard to the DOJ investigation report (“DOJ Report”) that Smith references,
Defendants contend that the report is not admissible as evidence under Rule 56.
Finally, Defendants argue that the City is immune from the claim of Negligent
Retention and/or Supervision because the injury to Smith occurred in connection with the
City’s performance of a governmental or proprietary function. Even if the City is not immune
from this claim, Defendants contend that it has not been sufficiently alleged by Smith.
Plaintiff’s Response
Smith contends that his first claim for Excessive Force is not barred by Heck because
Ferenec used excessive force on Smith after Smith was already arrested. By the time Ferenec
arrived on the scene, Smith was already handcuffed and subdued. Therefore, Smith’s
Excessive Force claim would not imply the invalidity of Smith’s Resisting Arrest conviction.
Smith also argues that he has sufficiently alleged his claim against the City and Rivera
for Customs and Policies Causing Constitutional Violations. Smith urges the Court to
consider the DOJ Report as evidence. Furthermore, Smith contends that the officers’
depositions show that LPD did not make appropriate changes in response to the DOJ Report.
Furthermore, the officers are not entitled to immunity from Smith’s Gross Negligence
claim because the officers acted with malicious purpose, in bad faith or in a wanton or
4
reckless manner. The officers consistently overreacted to Smith’s actions and Smith was
compliant with their demands.
Lastly, Smith argues that the DOJ Report also proves that the City and Rivera were
deliberately indifferent to the risk of constitutional violations and thus, Smith’s claim for
Negligent Retention and/or Supervision has been sufficiently alleged. The City and Rivera
failed to make significant changes to LPD policy after receiving the DOJ Report, thus
contributing to an ongoing policy of officers, including the Defendant officers, violating
citizens’ constitutional rights. Therefore, Smith argues that Defendants’ Motion for Summary
Judgment should be denied.
LAW AND ARGUMENT
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See
Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show no genuine
issue of material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing
Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994); and the court must view the facts and
all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant presents evidence to meet
its burden, the nonmoving party may not rest on its pleadings, but must come forward with
some significant probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing
Diary, 39 F.3d at 1347. This Court does not have the responsibility to search the record sua
sponte for genuine issues of material fact. Betkerur v. Aultman Hosp. Ass’n., 78 F.3d 1079,
5
1087 (6th Cir. 1996); Guarino v. Brookfield Township Trs., 980 F.2d 399, 404-06 (6th Cir.
1992). The burden falls upon the nonmoving party to “designate specific facts or evidence in
dispute,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving
party fails to make the necessary showing on an element upon which it has the burden of
proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether
summary judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d
386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
Does Heck v. Humphrey bar Smith’s Excessive Force claims?
Defendants contend that Heck bars Smith’s Excessive Force claim because proving
that the officers used excessive force would necessarily invalidate Smith’s resisting arrest
conviction. In Heck, a prisoner alleged that prosecutors and investigators had engaged in
unlawful investigation, destroyed exculpatory evidence and used illegal procedures in the
plaintiff’s trial, leading to the plaintiff’s conviction. 512 U.S. at 479. The Court held:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus... when a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.
6
Id. at 486-87. Conversely, “if the district court determines that the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the
suit.” Id. at 487.
In this Circuit, “if a plaintiff asserts a claim that contradicts an element of an
underlying criminal offense, or if that claim could have been asserted in criminal court as an
affirmative defense, Heck applies to bar the § 1983 suit.” Hayward v. Cleveland Clinic
Found., 759 F.3d 601, 609 (6th Cir. 2014). The Hayward court noted that excessive force
both contradicts an element of the Ohio resisting arrest statute and is an affirmative defense to
the charge of resisting arrest. Id. at 610-11. However, the court also noted that “Heck does
not bar § 1983 suits alleging post-arrest excessive force” (emphasis original). Id. at 611.
“Therefore, a court must carefully examine the facts and the temporal sequence of the
underlying offense and the alleged unconstitutional conduct to determine whether ‘the alleged
excessive force is used after the suspect ceases resisting arrest.’” Id. at 612.
In this case, Smith alleges excessive force against Ferenec, Thompson and Gidich.
Viewing the facts in the light most favorable to Smith, as the nonmovant, a reasonable jury
could find that Ferenec’s alleged use of excessive force occurred after Smith’s arrest. Smith
alleges that he was already handcuffed and subdued by the time Ferenec arrived on the scene.
Compl. ¶¶ 25-27. Smith reiterates the same facts in his deposition. Smith Dep. 44:10-46:5.
Similarly, while the footage from Ferenec’s dash camera is unclear, a reasonable juror could
find that the video shows that Smith was not resisting arrest by the time of Ferenec’s arrival
and that Ferenec used excessive force on Smith. Since there are genuine issues of material
7
fact, the Court denies summary judgment to Ferenec on Smith’s Excessive Force claim.
Smith also asserts claims for Excessive Force against Thompson and Gidich. “It is
well-settled that to constitute an ‘arrest,’ all that is required ‘is some act by the officer which
indicates his intention to detain or to take the person into custody, thereby subjecting that
person to the actual control and will of the officer.’” U.S. v. Randle, 67 F.Supp.2d 734, 738
(E.D.Mich. 1999) (quoting Commonwealth of Pennsylvania v. Brown, 230 Pa.Super. 214, 218
(1974)). Smith alleges in his Complaint that Thompson and Gidich ordered Smith to
approach their vehicle. Compl. ¶ 21. After Smith complied, Thompson and Gidich “exited
their vehicle and without provocation grabbed Plaintiff and violently took him to the ground,”
then they handcuffed Smith and instructed him to sit on the curb. Compl. ¶¶ 24-25. Even in
the light most favorable to Smith, the alleged use of excessive force occurred before the
officers “indicat[ed] [their] intention to detain” Smith; they had not attempted to handcuff him
yet and had merely called him over to their vehicle. Randle, 67 F.Supp.2d at 738. Therefore,
a reasonable jury could not find that Thompson and Gidich’s use of force occurred post-arrest.
Smith pled guilty to resisting arrest. Finding that Thompson and Gidich used
excessive force on Smith before his arrest would imply the invalidity of Smith’s underlying
criminal conviction of resisting arrest. Under Sixth Circuit precedent, excessive force both
contradicts an element of the Ohio resisting arrest statute and is an affirmative defense to
resisting arrest. Hayward, 759 F.3d at 610-11. Therefore, the Court grants summary
judgment to Thompson and Gidich on Smith’s Excessive Force claim since it is barred by
Heck.
In his deposition, Smith attempts to assert additional allegations against Gidich.
8
Specifically, Smith alleges that Gidich choked him after Gidich had already attempted to
handcuff him. Smith Dep. 26:2-23. However, Smith fails to assert these allegations in his
Complaint. Therefore, the Court nonetheless holds that Smith’s Excessive Force claims
against Thompson and Gidich are barred by Heck.
Is Ferenec entitled to qualified immunity on Smith’s Excessive Force claim?
“[G]overnment officials performing discretionary functions generally are shielded
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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity “is an immunity from suit rather
than a mere defense to liability,”Hunter v. Bryant, 502 U.S. 224, 227 (1991), and is a legal
question that must be determined early in the proceedings. Saucier v. Katz, 533 U.S. 194, 200
(2001).
“Qualified immunity is an affirmative defense that must be pleaded by a defendant
official.” Harlow, 457 U.S. at 815. Defendants bear the initial burden of coming forward
with facts suggesting that they were acting within the scope of their discretionary authority at
the time in question. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992).
The burden then shifts to plaintiff to show that defendants are not entitled to qualified
immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005); Cartwright v. City of
Marine City, 336 F.3d 487, 490-91 (6th Cir. 2003).
In Saucier v. Katz, the Supreme Court established a two-prong test for evaluating
whether defendants are entitled to qualified immunity in the context of § 1983 Excessive
Force claims. First, the court must evaluate “whether a constitutional right would have been
9
violated on the facts alleged.” Saucier, 533 U.S. at 200. Next, the court must consider
whether the right is clearly established. Id. “A government official’s conduct violates clearly
established law when, at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Smith alleges that Ferenec violated his Fourth Amendment rights when he used
excessive force against Smith. At the time, Smith alleges that he was handcuffed and was not
resisting or attempting to escape. “The Fourth Amendment prohibits the use of excessive
force by arresting and investigating officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir.
2006). On these facts as alleged, Ferenec’s slamming Smith’s chin into the windshield would
thus be a violation of Smith’s constitutional rights. Therefore, the first prong of the Saucier
test weighs against qualified immunity.
Turning to the second prong, the Court finds that Ferenec’s conduct violated clearly
established law. By September 2014, the right of a suspect who is not actively resisting to be
free from post-arrest excessive force was clearly established. See Meirthew v. Amore, 417
Fed. Appx. 494, 497 (6th Cir. 2011) (upholding the denial of qualified immunity for an officer
who took a suspect to the ground while the suspect was wearing handcuffs, resulting in
injury); Sigley v. Kuhn, Nos. 98-3977, 99-3531, 2000 WL 145187 (6th Cir. Jan. 31, 2000)
(upholding the denial of qualified immunity for an officer who shot a suspect after a physical
altercation between the suspect and the officer had concluded) and Michaels v. City of
Vermillion, 539 F.Supp.2d 975, 989-90 (N.D.Ohio 2008) (denying qualified immunity to an
officer who repeatedly tased a suspect after arresting and handcuffing him and after the
10
suspect was no longer resisting).
Defendants argue that even if Ferenec’s conduct violated Smith’s clearly established
constitutional rights, Ferenec is entitled to qualified immunity because his misestimation of
the amount of force necessary was a reasonable mistake. In determining whether an officer’s
actions are reasonable, the court must consider “the totality of the circumstances, including
the severity of the crime at issue, whether the subject pose[d] an immediate threat to the safety
of the officers or others, and whether [the subject was] actively resisting or attempting to
evade arrest by flight. This analysis ‘contains a built-in measure of deference to the officer’s
on-the-spot judgment.’” Meirthew, 417 Fed. Appx. at 497.
Considering the facts in a light most favorable to Smith as the nonmovant, the Court
finds that Ferenec is not entitled to qualified immunity. First, considering the severity of the
alleged crime, this Court has held that resisting arrest is “not particularly severe.” Michaels,
539 F.Supp.2d at 986. Similarly, “the suspected crime of drug activity was not an
intrinsically violent one,” and therefore, the Court finds that this factor weighs in favor of
Smith. Irvin v. City of Shaker Heights, 809 F.Supp.2d 719, 732 (N.D.Ohio 2011). Second,
the officers did not discover any weapons on Smith’s person when they patted him down
before handing him over to Ferenec, and by the time Ferenec used force on Smith, he was
handcuffed. Therefore, it is unlikely that Smith posed an immediate threat to the safety of the
officers or anyone else. Lastly, Smith was already handcuffed and the video evidence is
unclear as to whether Smith was resisting. There is a genuine issue of material fact as to
whether Smith was attempting to evade arrest at the time and the Court finds that this
precludes summary judgment for Ferenec on Smith’s Excessive Force claim.
11
Does Heck v. Humphrey bar Smith’s False/Wrongful Arrest/Imprisonment claims?
In order to establish a § 1983 claim for wrongful arrest, the plaintiff “must prove that
the arresting officers lacked probable cause to believe that the suspect had committed the
charged crime.” Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999). Under Ohio law,
an arrest is considered lawful only if probable cause exists to support the arrest. Hayward,
759 F.3d at 609-10. The lawfulness of the arrest is an element of the Ohio resisting arrest
statute. Id. at 609.
In order to recover under § 1983, Smith must prove that the officers lacked probable
cause to arrest him and thus, that the arrest was not lawful. Smith’s resisting arrest conviction
relies upon the lawfulness of the arrest, and Smith’s recovery under § 1983 would require
Smith to invalidate the lawfulness of the arrest. Therefore, the Court holds that Smith’s
False/Wrongful Arrest/Imprisonment claims are barred by Heck and thus grants Defendants
summary judgment on Smith’s False/Wrongful Arrest/Imprisonment claims.
Is the DOJ Report admissible as evidence?
Defendants argue that the DOJ Report is not admissible under Federal Rule of Civil
Procedure 56 because the it would not be admissible as evidence in trial. However, under
Federal Rule of Evidence 902(1), public documents that bear the seal of a department or
agency of the United States and a signature executing the document are self-authenticating.
The DOJ Report contains both. Therefore, the Court finds that the DOJ Report is selfauthenticating under Rule 902(1).
Additionally, investigative reports are admissible under Federal Rule of Evidence
803(8). Rule 803(8) provides that the following is not excluded under the hearsay rule: “A
12
record or statement of a public office if: (A) it sets out... (iii) in a civil case... factual findings
from a legally authorized investigation; and (B) the opponent does not show that the source of
information or other circumstances indicate a lack of trustworthiness.” Fed. R. Evid.
803(8)(A)(iii) and (B) (formerly Rule 803(8)(c)). “To determine whether a report is
trustworthy, courts consider the following factors: (1) the timeliness of the investigation upon
which the report is based, (2) the special skill or experience of the investigators, (3) whether
the agency held a hearing, and (4) possible motivational problems.” Chavez v. Carranza, 559
F.3d 486, 496 (6th Cir. 2009) (citing Bank of Lexington & Trust Co. v. Vining-Sparks Sec.,
Inc., 959 F.2d 606, 616-17 (6th Cir. 1992)). Rule 803(8)(B) puts the burden on Defendants to
show that the documents are not trustworthy.
Here, Defendants offer no evidence or argument on the trustworthiness of the DOJ
Report. Furthermore, nothing in the DOJ Report demonstrates issues with the timeliness of
the report, the experience of the investigators or motivational problems. Therefore, the Court
finds that the DOJ Report is admissible as evidence under Rule 56, but this ruling does not
foreclose Defendants from challenging as inadmissible certain aspects of the DOJ Report
either by motion in limine or at trial.
Has Smith presented sufficient evidence to support his § 1983 Claim for Customs and
Policies Causing Constitutional Violations?
Plaintiff alleges that the City and Rivera failed to adequately and properly supervise
the Defendant officers, ratified the conduct of the Defendant officers or implemented customs
and policies which violate the Fourth and Fourteenth Amendments. Compl. ¶¶ 49-51. “A
plaintiff raising a municipal liability claim under § 1983 must demonstrate that the alleged
federal violation occurred because of a municipal policy or custom.” Burgess v. Fischer, 735
13
F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978)). A municipality may not be sued under § 1983 on a theory of respondeat superior.
Id.
The existence of an illegal policy or custom may be established by demonstrating one
of the following: “(1) the existence of an illegal official policy or legislative enactment; (2)
that an official with final decision making authority ratified illegal actions; (3) the existence
of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance
or acquiescence of federal rights violations.” Id. In order to prevail on a failure-to-train-andsupervise claim, the plaintiff must show “prior instances of unconstitutional conduct
demonstrating that the municipality had ignored a history of abuse and was clearly on notice
that the training in this particular area was deficient and likely to cause injury. Id “[A]
custom-of-tolerance claim requires a showing that there was a pattern of inadequately
investigating similar claims.” Id.
Defendants claim that Smith has presented inadequate evidence to support these
Monell claims. However, Smith cites the DOJ Report as evidence of these claims. While the
DOJ Report did not find a present pattern of excessive force in the LPD, it did find that one
had existed in previous years. The DOJ Report also gives several recommendations to
remedy what it refers to as “inadequate training.” Furthermore, the DOJ Report states that
LPD had not properly addressed excessive force claims in the past and that LPD’s current
policies still failed to comport with legal standards on the use of excessive force in certain
respects. On these facts, a reasonable jury could find that the City and Rivera instituted
policies and customs causing constitutional violations. Therefore, the Court finds that this
14
precludes summary judgment for Defendants on Smith’s Monell claim.
Are the Defendant officers entitled to statutory immunity from Smith’s Gross
Negligence claim?
Under Ohio law, Gross Negligence is defined as “failure to exercise any or very slight
care” or “failure to exercise even that care which a careless person would use.” Thompson
Elec., Inc. v. Bank One, Akron, N.A., 37 Ohio St.3d 259, 265 (1988). Immunity is implied
“[i]n a civil action brought against... an employee of a political subdivision to recover
damages for injury, death, or loss to person or property allegedly caused by any act or
omission in connection with a governmental or proprietary function.” Ohio Rev. Code §
2744.03(A) (2018). An employee of a political subdivision is immune from liability unless
“(a) [t]he employee’s acts or omissions were manifestly outside the scope of the employee’s
employment or official responsibilities; (b) [t]he employee’s acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil liability is
expressly imposed upon the employee by a section of the Revised Code.” Ohio Rev. Code §
2744.03(A)(6) (2018).
Smith asserts that the Defendant officers are not immune from liability for Gross
Negligence because they acted maliciously, in bad faith, or wantonly and recklessly. Ohio
courts define “malice” as “a conscious disregard for the rights and safety of other persons that
has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334,
336 (1987). “Bad faith” is defined as “dishonest purpose, moral obliquity, conscious
wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the
nature of fraud.” Jackson v. McDonald, 144 Ohio App.3d 301 (5th Dist. 2001). Wanton
misconduct is defined as “the failure to exercise any care toward those to whom a duty of care
15
is owed in circumstances in which there is great probability that harm will result.” Anderson
v. Massillon, 134 Ohio St.3d 380, 388 (2012). Lastly, “[r]eckless conduct is 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.”
Id.
In his Complaint, Smith alleges that Thompson and Gidich “exited their vehicle and
without provocation grabbed Plaintiff and violently took him to the ground.” Compl. ¶ 24.
Smith testified in his deposition that Gidich put him in a choke hold and wrestled him to the
ground while Thompson stood by the police car. Smith Dep. 26:11-28:20. However, Gidich
testified that both he and Thompson were involved in the struggle with Smith and that
Thompson never put Smith in a headlock. Gidich Dep. 33:9-22, 42:14-16. Thompson also
testified that he and Gidich were both involved in the struggle, but stated that he was the
primary officer who took Smith to the ground. Thompson Dep. 33:18-35:7. Thompson also
stated that he used a headlock technique to bring Smith to the ground. Id. Both officers stated
that Gidich saw Smith swallow drugs, which is why the officers took Smith to the ground.
Viewing the facts in a light most favorable to the nonmovant, there is a question of material
fact as to whether Thompson and Gidich acted maliciously, in bad faith or willfully and
recklessly, and Court denies summary judgment to Thompson and Gidich on Smith’s Gross
Negligence claims.
Smith also alleges that Ferenec committed Gross Negligence when he slammed
Smith’s chin into the windshield. Compl. ¶¶ 28, 54. In his deposition, Smith testified that
Ferenec escorted him from the curb where he was sitting to Ferenec’s patrol car by hiking his
16
hands up behind his back and pushing him forward, despite the fact that Smith did not resist.
Smith Dep. 41:18-45:23. When the two reached the patrol car, Ferenec lifted Smith off the
ground and slammed his chin into the windshield without provocation. Id. Ferenec’s
testimony was unclear as to whether he hiked Smith’s arms up behind his back. Ferenec Dep.
24:7-18. Ferenec also testified that Smith actively resisted Ferenec’s attempt to lead Smith to
the patrol car, and that Smith made an abrupt movement when they reached the patrol car,
which is why Ferenec slammed Smith into the windshield. Ferenec Dep. 26:1-4, 34:23-35:24.
In light of Smith’s allegations, the conflicting testimony of Smith and the officers and the
dash cam footage from Ferenec’s car, a reasonable jury could find that Ferenec used excessive
force on Smith without provocation, evidencing a malicious purpose, bad faith, or a wanton or
reckless disregard for Smith’s safety. As such, the Court denies summary judgment for
Ferenec on Smith’s Gross Negligence claim.
Smith also alleges Gross Negligence against Salgado. However, Smith does not allege
in his Complaint that Salgado used any physical force but rather that he failed to intervene in
the use of excessive force by Ferenec. Compl. ¶¶ 32-34. The contact between Ferenec and
Smith lasted only a matter of seconds. Furthermore, Smith stated in his Complaint that
Salgado arrived on the scene near the same time as Ferenec and thus, was not present to
witness the alleged excessive force contact between Smith, Thompson and Gidich. Salgado
testified that he did not witness the contact between Smith and Ferenec. Smith has also failed
to specifically allege any facts which may demonstrate that Salgado acted maliciously, in bad
faith, or wantonly and recklessly. As such, the Court grants summary judgment to Salgado on
Smith’s Gross Negligence claim.
17
Is the City immune from liability for Smith’s Negligent Retention and/or Supervising
claim?
Defendants assert that the City is immune from liability pursuant to R.C. Chapter
2744. Under this chapter, “we begin with the understanding that political subdivisions are not
liable generally for injury or death to persons in connection with [the] performance of a
governmental or proprietary function.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 3
(2008). There are five exceptions to this rule listed in R.C. 2744.03(B). Meredith v.
Cleveland Heights Police Dept., No. 93436, 2010 WL 2206405, at *2 (Ohio June 3, 2010). If
any exception applies, “the burden shifts, and the analysis requires a court to determine
whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision
a defense against liability.” Id.
The City is entitled to the presumption of immunity because at all times relevant, the
City was a political subdivision performing the governmental function of policing. See
Meredith, 2010 WL 2206405, at *3 (holding that providing police services is a governmental
function). Therefore, the Court must determine whether any exception listed in R.C.
2744.03(B) applies. Those exceptions are: (1) negligent operation of a motor vehicle, (2)
proprietary functions, (3) failure to repair roads, (4) defects in public buildings and (5)
statutorily imposed liability. Id., citing Ohio Rev. Code § 2744.03(B) (2018).
None of these exceptions apply in this case. Furthermore, Smith has made no attempt
to argue that any specific exception applies. Therefore, the Court holds that the City is
entitled to summary judgment on Smith’s Negligent Retention and/or Supervising claim.
Is Rivera entitled to immunity from Smith’s Negligent Retention and/or Supervising
claim?
18
Ohio law presumes immunity for an employee of a political subdivision “[i]n a civil
action... to recover damages for injury, death, or loss to person or property allegedly caused
by any act or omission in connection with a governmental or proprietary function.” Ohio
Rev. Code § 2744.03(A) (2018). An employee is immune from liability unless: (1) their acts
or omissions were “manifestly outside the scope of [their] employment or official
responsibilities,” (2) they acted with malicious purpose, in bad faith, or wantonly or recklessly
or (3) there is statutorily imposed liability.
Smith has not pleaded any facts or presented any evidence suggesting that Rivera’s
retention and supervising of the Defendant officers falls under any of the above-listed
exceptions to immunity. Because Smith has not presented any such evidence or alleged that
Rivera acted with malicious purpose, in bad faith or in a wanton or reckless manner, the Court
holds that Rivera is entitled to immunity from Smith’s Negligent Retention and/or
Supervising claim. Therefore, the Court grants summary judgment to Rivera on this claim.
Therefore, for the foregoing reasons, the Court grants Defendants’ Motion for
Summary Judgment in part and denies it in part. The Court grants summary judgment to
Gidich and Thompson on Smith’s § 1983 Excessive Force claim, to all Defendants on Smith’s
False/Wrongful Arrest/Imprisonment claim, to Salgado on Smith’s state-law claim for Gross
Negligence, and to the City and Rivera on Smith’s state-law claim for Negligent Retention
and/or Supervision claim. The Court denies summary judgment to Ferenec on Smith’s § 1983
Excessive Force claim; to the City and Rivera on Smith’s Monell claim for Customs and
Policies Causing Constitutional Violations and to Thompson, Gidich and Ferenec on Smith’s
state-law claim for Gross Negligence.
19
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: July 11, 2018
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?