Border v. Trumbull County Board of Commissioners et al
Filing
132
Memorandum Opinion and Order denying defendants' Motion for reconsideration. Related Doc # 104 , and denying plaintiff's Motion to strike (Related Doc # 108 ). Judge Donald C. Nugent(C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIEL B. BORDER,
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ADMINISTRATOR OF THE ESTATE
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OF ADAM N. BORDER, DECEASED, et al., )
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Plaintiffs,
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v.
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TRUMBULL COUNTY BOARD OF
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COMMISSIONERS, et al.,
)
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Defendants.
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)
CASE NO. 4:08 CV 3032
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER
This matter is before the Court on Defendants Trumbull County, Correction Officer John
Naples, and Correction Officer Mike Geer’s (collectively “the County Defendants”) Motion for
Reconsideration. (ECF #104). Plaintiffs filed a Motion to Strike and Opposition to Defendant
Trumbull County, John Naples and Michael Geer’s Motion for Reconsideration, (ECF #108),
and the County Defendants filed a Reply/Opposition to the Motion to Strike. (ECF #114).
The County Defendants contend that the Court’s January 14, 2010 Order relied on
misstated affidavit testimony by Officer Naples. The Court’s Order misconstrued Officer Naples
testimony as acknowledging that he received notice from another inmate that Border was having
trouble breathing, and that he relayed this information to Officer Geer who then rendered
treatment to Mr. Border. This in fact was not the testimony contained in Officer Naples
affidavit. In fact, Officer Naples acknowledged that he received notice that an inmate other than
Mr. Border was having trouble breathing, and that Officer Geer caused medical treatment to be
provided to that other inmate.
While it is true that the January 14 Order misstated this testimony, the Court’s Order was
not dependent on this information. The basis for the denial of summary judgment was the
existence of conflicting testimony which created a general issue of material fact, rendering the
case unsuitable for summary judgment. The misstatement of Officer Naples testimony appeared
to strengthen the Plaintiffs’ position, but was not the sole evidence supporting it. Therefore,
even taking into account the actual testimony provided by Officer Naples, an issue of fact
remains on the issue of qualified immunity. The testimony provided by Officer Naples and
Officer Geer is contradicted by the testimony of Lewis Moler and Gary Smith with regard to the
officers’ knowledge of Mr. Border’s medical problems and their conduct in response to his
condition. Because there was conflicting testimony on a material issue of fact, summary
judgment was not appropriate and the Court’s Order denying summary judgment shall remain in
place.
The County Defendants also complain that the Court did not rule on Trumbull County’s
request for summary judgment on the issue of immunity under Monell v. New York City Dept. of
Social Services (1978), 436 U.S. 658, 691. They contend that summary judgment should have
been granted in the County’s favor because the Plaintiffs did not address the County’s arguments
in their opposition. However, as Plaintiffs have pointed out, and Defendants have failed to
contest, the Court specifically asked the parties to brief only the issue of qualified immunity.
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The governmental immunity established through Monell and its progeny is not qualified
immunity. Therefore, Plaintiffs’ failure to brief this issue is not a waiver of their opposition to
summary judgment on this topic.
For the reasons set forth above, the County Defendants’ Motion for Reconsideration is
DENIED. (ECF #104). Plaintiffs’ Motion to Strike is also DENIED. (ECF #108).
IT IS SO ORDERED.
/s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED:
November 16, 2011
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