Lacey v. City of Warren et al
Filing
38
Memorandum of Opinion and Order For the reasons stated herein, the Court grants the 31 Motion for Summary Judgment, in part, and denies it, in part. The only claim that survives is Plaintiff's claim of prolonged detention. Trial is set for 1/13/2014 in Courtroom 351 before Judge Benita Y. Pearson, with a Final Pretrial Conference being held on 12/11/2013 at 9:00 a.m. in Chambers 313 before Judge Benita Y. Pearson. Judge Benita Y. Pearson on 9/30/2013. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DWAYNE LACEY,
Plaintiff,
v.
CITY OF WARREN, et al.,
Defendants.
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CASE NO. 4:11CV02506
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION &
ORDER [Resolving ECF No. 31]
This action originates from an on-the-street encounter between Plaintiff Dwayne Lacey, an
African-American bail bondsman, and three Caucasian members of the Warren Police Department.
Plaintiff, who was stopped, placed in handcuffs, and searched during the incident, alleges that one
of the officers, Defendant Sergeant John Yuricek, violated his civil rights. Plaintiff brings this
lawsuit under the auspices of 42 U.S.C. § 1983 against Yuricek and Defendant City of Warren.
The Court is called upon to decide Defendants’ motion for summary judgment docketed at
ECF No. 31. The Court has reviewed the supporting memorandum of law, the responsive briefs,
the submitted exhibits and the governing law. For the reasons explained below, the Court grants
Defendants’ motion for summary judgment, in part, and denies it, in part.
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I. Factual and Procedural Background
A. Factual Background
What follows is not in dispute. Plaintiff is a licensed bail bondsman who works as an
independent contractor for All American Big Bob’s Bail Bonding, Inc. ECF No. 37-2 at 6, 51. A
day or two prior to October 21, 2009, Plaintiff was informed by his secretary that Heather Bako,
whose bond Plaintiff had written, failed to make a court appearance and that a warrant had been
issued for her arrest. ECF No. 37-2 at 64-66. Then, on October 21, 2009, Plaintiff received a call
from Terry Sartin, the co-signor on Bako’s bond. ECF No. 37-2 at 66, 69. Sartin asked Plaintiff to
travel to his residence in Warren that day to apprehend Bako so that he would not have to pay the
forfeiture on the bond. ECF No. 37-2 at 69-70, 74. Plaintiff agreed to go. ECF No. 37-2 at 69.
Plaintiff drove to Sartin’s residence in a red Jeep Cherokee. ECF Nos. 31-1 at 27; 37-2 at
72. When Plaintiff arrived, he saw Sartin and Bako, who are both Caucasian, standing outside on
the sidewalk. ECF Nos. 37-2 at 74; 31-1 at 26; 37-5 at 18. Bako immediately fled, and Sartin ran
after her. ECF No. 37-2 at 74-75. Plaintiff did not pursue Bako. ECF No. 37-2 at 75. According
to Plaintiff, he generally does not chase anyone whom he cannot convince to go with him voluntarily.
ECF No. 37-2 at 84-87. As Plaintiff prepared to return home, somebody exited Sartin’s residence
and informed Plaintiff that Sartin had caught Bako one street over on Belvedere Avenue. ECF No.
37-2 at 75. Plaintiff drove to that location. ECF No. 37-2 at 76. When he arrived, he saw Sartin
holding Bako down on the ground. ECF No. 37-2 at 77. Bako was yelling, cursing, and trying to
escape. ECF No. 37-2 at 77-78. Plaintiff approached Bako and placed her in handcuffs. ECF No.
37-2 at 77. Plaintiff then escorted Bako to his Jeep and secured her in the front passenger seat of the
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vehicle. ECF No. 37-2 at 82.
As Plaintiff placed his vehicle in motion; ECF Nos. 37-2 at 91; 37-4 at 44; three police
vehicles responding to a 911 call from an observer on Belvedere Avenue arrived contemporaneously
and surrounded Plaintiff. ECF Nos. 31-1 at 27; 37-1 at 6, 12; 37-4 at 38. Patrolman Jeffrey
Hoolihan and Yuricek stopped their vehicles in front of Plaintiff’s Jeep while Lieutenant Robert
Massucci parked his car behind Plaintiff. ECF Nos. 37-3 at 14; 37-4 at 48; 37-6 at 36. Plaintiff
exited his vehicle. ECF No. 37-2 at 91. Hoolihan pointed his gun at Plaintiff and ordered him to
put his hands up. ECF No. 37-6 at 37. After Plaintiff complied, Hoolihan holstered his weapon and
walked to the passenger side of the Jeep to speak with Bako. ECF Nos. 37-6 at 37-38; 37-2 at 94-95.
The events that allegedly transpired next form the nucleus of this lawsuit. There is no dispute
that Yuricek approached Plaintiff and began speaking to him. ECF Nos. 37-2 at 97-98; 37-3 at 17;
37-4 at 50. Plaintiff testified in his deposition that Yuricek asked, “What are you doing on this side
of town” and “Why are you picking up white women?” ECF No. 37-2 at 98. Plaintiff testified that
Yuricek mocked Plaintiff’s badge, commenting that Plaintiff “probably bought it at the Army Navy
store.” ECF No. 37-2 at 99. Plaintiff claimed that Yuricek repeatedly and arbitrarily ordered
Plaintiff to place his hands on different parts of the Jeep, and that while this occurred Massucci and
Hooligan “were standing there smiling, laughing.” ECF No. 37-2 at 99-101. According to Plaintiff,
Yuricek also grabbed his right shoulder and threatened to throw Plaintiff’s “black ass” to the ground.
ECF No. 37-2 at 103. Eventually, Yuricek placed Plaintiff in handcuffs. ECF Nos. 37-2 at 104; 374 at 52-53. Plaintiff testified that he was detained in handcuffs even though his badge was visibly
displayed on his belt and Plaintiff had informed Yuricek that he was a bail bondsman. ECF No. 37-2
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at 98, 108. Plaintiff testified that the officers “dehumanized” him by handcuffing him, searching his
pockets, and taking the collapsible baton and mace from his utility belt. ECF No. 37-2 at 121-123.
Yuricek’s account of the events differs from that of Plaintiff in several respects. Yuricek
testified at his deposition that when he approached Plaintiff, he did not see a badge identifying
Plaintiff as a bail bondsman. ECF No. 37-4 at 51. While Yuricek acknowledged that Plaintiff
claimed to be a bail bondsman, in Yuricek’s view, that did not establish who Plaintiff was and what
he was doing there. ECF No. 37-4 at 50, 57. According to Yuricek, he ordered Plaintiff to keep his
hands on the hood of the Jeep because he saw that Plaintiff was carrying weapons in his belt. ECF
No. 37-4 at 51-52. Yet, despite ordering Plaintiff to keep his hands up at least three times, Plaintiff
kept “sliding them off, dropping them down.” ECF No. 37-4 at 52. For that reason, claimed
Yuricek, he decided to handcuff Plaintiff. ECF No. 37-4 at 52-53. Yuricek testified that he released
Plaintiff from the handcuffs after Massucci spoke with Plaintiff and Massucci seemed “comfortable
enough” that Plaintiff was a bail bondsman. ECF No. 37-4 at 58-59. Yuricek denied saying that
Plaintiff should not pick up white women in that neighborhood. ECF No. 37-4 at 63.
There is no dispute that Plaintiff was permitted to leave the scene. ECF Nos. 37-2 at 110;
37-3 at 28; 37-4 at 58-59. Furthermore, Hoolihan, not Plaintiff, transported Bako to the Mahoning
County jail. ECF No. 37-6 at 40. It is also undisputed that neither Yuricek nor the other officers
investigated Sartin during this incident. ECF Nos. 37-5 at 18; 37-4 at 62; 37-3 at 27; see Dashboard
Video Exhibit at ECF No. 33. Additional facts will be set forth as necessary.
B. Procedural Posture
Plaintiff filed a Complaint in the Trumbull County, Ohio, Court of Common Pleas, alleging
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that Yuricek violated his Fourth Amendment right to be free from unreasonable search and seizure
and the use of excessive force. ECF No. 1-1 at 5-6; see ECF No. 35 at 12. Plaintiff also alleges that
Yuricek selectively enforced the law on the basis of Plaintiff’s race in violation of the Equal
Protection Clause of the Fourteenth Amendment. ECF No. 1-1 at 5; see ECF No. 35 at 12.
Furthermore, Plaintiff asserts a Monell claim against the City of Warren on the basis of its alleged
failure to provide adequate training, supervision, and discipline for its police officers, which failure
constituted a policy of deliberate indifference to the safety of its citizens.1 ECF No. 1-1 at 6-7.
Plaintiff seeks compensatory and punitive damages, costs, and other relief. ECF No. 1-1 at 8.
Defendants removed the action from State court pursuant to this Court’s federal question
jurisdiction. 28 U.S.C. §§ 1331, 1441(a). After filing an Answer, ECF No. 3, Defendants moved
for summary judgment on the grounds that (1) Yuricek did not violate Plaintiff’s Fourth or
Fourteenth Amendment rights; (2) Yuricek is entitled to qualified immunity; and (3) the facts do not
satisfy the elements of a cause of action under Monell. ECF No. 31. In support of their motion,
Defendants filed a memorandum of law and various exhibits, including a partial video recording
taken from the dashboard camera of Hoolihan’s patrol car. See Dashboard Video Exhibit at ECF No.
33. Plaintiff filed an opposition brief, ECF No. 35, to which Defendants filed a reply. ECF No. 36.
II. Legal Standard
“Summary judgment is appropriate only ‘if the movant shows that there is no genuine dispute
1
Plaintiff’s claims with respect to Yuricek are brought against Yuricek in his
individual and official capacities. ECF No. 1-1 at 2. As characterized by Plaintiff, the
claim against Yuricek in his official capacity is the same as the Monell claim against the
City of Warren. ECF No. 35 at 21.
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as to any material fact and the movant is entitled to judgment as a matter of law.’” EJS Properties,
LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). “‘A
genuine issue of material fact exists when there is sufficient evidence for a trier of fact to find for
the nonmoving party.’” U.S. ex rel. Wall v. Circle C Construction, LLC, 697 F.3d 345, 351 (6th Cir.
2012) (quoting Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006)). A court deciding a motion
for summary judgment “must construe the evidence and draw all reasonable inferences in favor of
the nonmoving party.” Kuhn v. Washtenaw County, 709 F.3d 612, 620 (6th Cir. 2013). “Where the
moving party carries its initial burden, the nonmoving party ‘may not rest upon its mere allegations
or denials of the adverse party’s pleadings, but rather must set forth specific facts showing that there
is a genuine issue for trial.’” Ellington v. City of East Cleveland, 689 F.3d 549, 552 (6th Cir. 2012)
(quoting Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009)); see Tingle v. Arbors at
Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (“a mere ‘scintilla’ of evidence in support of the
nonmoving party’s position is insufficient to defeat summary judgment”).
III. Discussion
This lawsuit is brought under 42 U.S.C. § 1983.2 Section 1983 creates no substantive rights;
rather, it provides remedies for deprivations of rights established elsewhere. City of Oklahoma City
v. Tuttle, 471 U.S. 808, 817, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). To prevail under the statute,
2
Section 1983 provides in relevant part: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .”
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a plaintiff must prove “(1) the deprivation of a right secured by the Constitution or laws of the United
States (2) caused by a person acting under the color of state law.” Sigley v. City of Parma Heights,
437 F.3d 527, 533 (6th Cir. 2006). Here, Plaintiff claims that Yuricek, a municipal police officer,
violated his Fourth Amendment right to be free from unreasonable searches and seizures and the use
of excessive force, as well as his Fourteenth Amendment right to equal protection of the laws.
Plaintiff also asserts that the City of Warren caused these constitutional deprivations.
A § 1983 plaintiff must overcome the defense of qualified immunity when it is properly
raised, as it was in Defendants’ Answer. See ECF No. 3 at 3. Qualified immunity protects
government officials in the performance of their discretionary duties by shielding them 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, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). The essential purpose of qualified
immunity is to provide government officials with the ability to reasonably anticipate when their
conduct may give rise to liability and to know that “they will not be held personally liable as long
as their actions are reasonable in light of current American law.” Anderson v. Creighton, 483 U.S.
635, 646, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).
The Sixth Circuit has instructed that the qualified immunity standard is one of objective
reasonableness and that courts should engage in “‘a fact-specific, case-by-case’ inquiry focused on
‘whether a reasonable official in the defendant’s position could have believed that his conduct was
lawful, judged from the perspective of the reasonable official on the scene.’” Marcilis v. Township
of Redford, 693 F.3d 589, 598 (6th Cir. 2012) (quoting Cochran v. Gilliam, 656 F.3d 300, 306 (6th
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Cir. 2011)). In particular, courts should inquire at the summary judgment stage “‘(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.’” Hearring v. Sliwowski, 712 F.3d
275, 279 (6th Cir. 2013) (quoting Bazzi v. City of Dearborn, 658 F.3d 598, 606-607 (6th Cir. 2011)).
“A right is clearly established if ‘[t]he contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.’” Id. (quoting Anderson, 483 U.S.
at 640); see Grawey v. Drury, 567 F.3d 302, 313 (6th Cir. 2009) (“[t]he key determination is whether
a defendant moving for summary judgment on qualified immunity grounds was on notice that his
alleged actions were unconstitutional”). Courts may decide which of the two questions to address
first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).
In assessing whether a right is “clearly established,” the Court must first look to the decisions
of the United States Supreme Court, then to the decisions of the Sixth Circuit, and lastly to the
decisions of other circuits. Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006). While a case
“directly on point” is not required, existing precedent must have placed the constitutional question
“beyond debate.” Ashcroft v. al-Kidd, __ U.S. __, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011);
see Smith v. Cupp, 430 F.3d 766, 776-77 (6th Cir. 2005) (“where a general constitutional rule applies
with ‘obvious clarity’ to a particular case, factually similar decisional law is not required to defeat
a claim of qualified immunity”). The issue of qualified immunity may be submitted to a jury only
if the legal question of immunity is completely dependent upon which view of the disputed facts is
accepted by the jury. Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007). Once the qualified
immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not
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entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
A. Fourth Amendment Claims
Plaintiff asserts that the specific acts which constitute a violation of his Fourth Amendment
rights are Yuricek’s (1) initial handcuffing of Plaintiff; (2) grab and push of Plaintiff’s shoulder; (3)
search; and (4) “prolonged detention” of Plaintiff. ECF No. 35 at 14-16, 19. Defendants contend
that the foregoing acts either did not occur, do not amount to a constitutional violation, or were
reasonable under the circumstances. ECF Nos. 31 at 10-17; 36 at 9-16.
The Fourth Amendment to the United States Constitution provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches or
seizures, shall not be violated . . . .” A person is “seized” within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554,
100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). In the landmark case of Terry v. Ohio, the United States
Supreme Court enshrined the principle that even when a police officer does not have probable cause
to make an arrest, if he or she has reasonable suspicion that criminal activity may be afoot, the officer
may conduct a limited seizure and briefly detain an individual for investigative purposes. Terry v.
Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see United States v. BrignonPonce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).
A police officer’s ability to perform a seizure or investigative detention is cabined to protect
individual liberties. “This much . . . is clear: an investigative detention must be temporary and last
no longer than is necessary to effectuate the purposes of the stop. Similarly, the investigative
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methods employed should be the least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319,
75 L. Ed. 2d 229 (1983). In other words, a Terry stop cannot be excessively intrusive and “must be
reasonably related in scope and duration to the purposes of the investigation.” Bennett v. City of
Eastpointe, 410 F.3d 810, 836 (6th Cir. 2005). The Sixth Circuit follows a two-pronged approach
for evaluating whether an investigative stop is reasonable:
(1) whether there was a proper basis for the stop, which is judged by examining
whether the law enforcement officials were aware of specific and articulable facts
which gave rise to a reasonable suspicion; and (2) whether the degree of intrusion
into the suspect’s personal security was reasonably related in scope to the situation
at hand, which is judged by examining the reasonableness of the officials’ conduct
given their suspicions and the surrounding circumstances. . . . In other words, the
greater the degree of intrusion during a stop, the more solid must be the officer’s
suspicion that the stopped individual is guilty of wrongdoing.
Smoak v. Hall, 460 F.3d 768, 779 (6th Cir. 2006) (quotations omitted).
Plaintiff concedes that the police had a proper basis to conduct the initial stop because they
had information that “a woman was possibly being abducted.” ECF No. 35 at 13. Charles Clauss,
the Belvedere Avenue observer who placed the 911 call, testified that he told the operator he saw
a white male tackle a white female and heard the female cry for help. ECF No. 37-1 at 13-14. After
a Jeep Cherokee arrived on the scene, Clauss conveyed that a black male emerged from the vehicle,
handcuffed the female, and placed her in his Jeep. ECF No. 37-1 at 17-18. The above information
was then communicated to Yuricek and the other officers. ECF No. 37-4 at 43; 31-8 at 3; 31-1 at
26. Accordingly, all responding officers reasonably suspected that they were responding to a
criminal abduction. See Smoak, 460 F.3d at 778 (reasonable suspicion requires more than hunch
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but “falls considerably short of satisfying a preponderance of the evidence standard” [quotations
omitted]); see also Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (officer’s reasonable
suspicion “can be derived from such sources as informant tips, dispatch information, and directions
from other officers”). The Court’s task is to determine whether the events that unfolded after the
initial stop constituted an unreasonable degree of intrusion and ripened into constitutional harms.
1. Dashboard Camera Video
Preliminarily, the Court will remark about the Dashboard Video Exhibit submitted by
Defendants. The Court has reviewed the video carefully. The information it provides is limited.
The video ends, without explanation, roughly three minutes after the officers stop Plaintiff. Much
of the conversation is inaudible. Furthermore, the initial interaction between Yuricek and Plaintiff
occurred off-camera. In fact, the length of time in which Plaintiff actually appears on the video is
less than ninety seconds. Despite the obvious limitations of the video as evidence, it offers some
important details. The Court will note such details, when appropriate, in the analysis below.
2. Initial Handcuffing
The Court begins with the handcuffing of Plaintiff. Fourth Amendment jurisprudence “has
long recognized that the right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490
U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). During a Terry stop, officers may use
handcuffs so long as circumstances warrant that precaution. Radvansky v. City of Olmsted Falls,
395 F.3d 291, 309 (6th Cir. 2005). In reviewing whether an officer’s particular use of force is
proper, courts should not judge the reasonableness of the officer’s actions “with the benefit of 20/20
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hindsight” but should judge it “from the perspective of a reasonable officer on the scene.” Dorsey,
517 F.3d at 399. The Fourth Amendment’s “reasonableness” inquiry is an objective one. “[T]he
question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation. . . . An
officer’s evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use
of force constitutional.” Graham, at 397 (citations omitted). Evaluating the use of force “requires
a ‘careful balancing’ of the individual interest in being free from unreasonable seizures and the
important governmental interest in protecting the safety of its peace officers and the public.”
Williams v. City of Grosse Pointe Park, 496 F.3d 482, 486 (6th Cir. 2007).
The independent evidence contradicts, to a degree, Plaintiff’s account of the events leading
up to Yuricek’s use of handcuffs. Although Plaintiff testified that six or more minutes elapsed
before Yuricek handcuffed him; ECF No. 37-2 at 96; the video shows Plaintiff on the screen, in
handcuffs, less than two minutes after the stop. Thus, Plaintiff was placed in handcuffs earlier than
he claimed. Although Plaintiff claimed that Yuricek ordered him to arbitrarily place his hands on
different parts of his vehicle, Clauss and Bako testified that instead of keeping his hands on the
hood of the Jeep as ordered, Plaintiff kept trying to reach into his pockets. ECF Nos. 37-1 at 24;
37-5 at 19. Yuricek is heard in the video ordering Plaintiff to put his hands on the car several times.
Moreover, the video does not support Plaintiff’s testimony that during the time Yuricek issued
orders, Hoolihan and Massucci stood by and laughed. The audio supplied for the dashboard camera
was captured from a microphone attached to Hoolihan’s uniform. ECF No. 37-6 at 43. Any
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mocking laughter from Hoolihan should have been captured by the video.
The Court finds that qualified immunity attaches to Yuricek’s initial use of handcuffs. He
was responding to a potentially serious crime, the suspect (Plaintiff) had weapons attached to his
utility belt, and Plaintiff did not comply with Yuricek’s orders to keep his hands on the car. A
reasonable officer on the scene could have believed that the use of handcuffs was justified–at least
initially when the situation was tense and many facts were unknown–to secure the suspect and
protect the officers, and that it did not impermissibly intrude upon Plaintiff.
3. Shoulder Grab and Push
In his opposition brief, Plaintiff claims that Yuricek “grabb[ed] [him] by the shoulder and
push[ed] him into the vehicle . . . .” ECF No. 35 at 19. Nothing in the record shows that Yuricek
pushed Plaintiff into a vehicle. Plaintiff testified that Yuricek grabbed his shoulder for “a couple
of seconds” prior to handcuffing him, and that Yuricek “push[ed] with the shoulders.” ECF No.
37-2 at 104, 129. Plaintiff did not testify that Yuricek pushed him into a vehicle. Neither Bako nor
Clauss, the two witnesses on the scene, saw Yuricek push Plaintiff into a vehicle or physically do
anything that appeared improper. ECF Nos. 37-1 at 27; 37-5 at 21. Indeed, at another point in the
opposition brief, Plaintiff describes Yuricek’s conduct as pushing Plaintiff toward the vehicle. ECF
No. 35 at 10. The contradictory assertion is not supported by the record.
Yuricek’s alleged grab and push of Plaintiff’s shoulder does not violate the Fourth
Amendment. Plaintiff testified that when Yuricek grabbed his shoulder, Yuricek stated (apparently
in regard to Plaintiff’s hands), “Well, you didn’t put it over here. No, I told you over here.” ECF
No. 37-2 at 101. Assuming the truth of Plaintiff’s testimony, Yuricek evidently grabbed Plaintiff’s
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shoulder in an attempt to assert control over Plaintiff during the initial moments when Plaintiff was
not fully compliant with Yuricek’s instructions to keep his hands on the car. Plaintiff described
Yuricek’s grab as “not extensive.” ECF No. 37-2 at 135. Plaintiff did not suffer a bruise or a
sprain, and he did not require medical attention for the shoulder. ECF No. 37-2 at 135-36. Based
on the minimal degree of force used, the point in time in which it was used, and the purpose for
which it was applied, the Court concludes that no constitutional injury occurred. See McDougald
v. Timberlake, No. 1:08CV744, 2010 WL 2572800 at *4 (S.D. Ohio May 27, 2010) (“in an
excessive force claim, a Plaintiff must demonstrate that the amount of force used was sufficiently
egregious . . . and that the force used was not de minimus”). Moreover, a reasonable officer could
have believed that the shoulder grab and push, under the initial circumstances presented, were
lawful. Qualified immunity therefore attaches.3
4. Search
Plaintiff contends that Yuricek searched him. ECF No. 35 at 14. Plaintiff divulges little
about the search, e.g., when it occurred, what was searched, how long it took. The only detail
3
Plaintiff also argues that Yuricek’s “threats and harassment” violated his Fourth
Amendment rights. Presumably, Plaintiff is referring to Yuricek’s alleged use of racially
charged language and threat to throw Plaintiff’s “black ass” to the ground. ECF No. 37-2
at 102-103. The officer’s alleged use of racial epithets is concerning. Allegations of an
officer’s use of verbal threats and racially charged comments do not, however, transform
an otherwise nonexcessive use of force into an unconstitutional excessive force, and,
thus, do not arise to Fourth Amendment violations. See Williams v. Sandel, 433 Fed.
Appx. 353, 362-63 (6th Cir. 2011) ("[p]olicemen's use of slurs and racial epithets is not a
search or seizure, and thus cannot sink to the level of violating the Fourth Amendment's
prohibition of excessive force" [quotations omitted]), cert. denied, __ U.S. __, 132 S. Ct.
1558 (2012); Marcilis v. Township of Redford, 693 F.3d 589, 599 (6th Cir. 2012) (threats
not excessive force).
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provided by Plaintiff is that it was a “pat down” search. ECF No. 35 at 16.
The Fourth Amendment protects individuals from unwarranted pat-down searches, or frisks.
“A lawful stop does not necessarily carry with it the authority to conduct a pat-down search.”
Bennett, 410 F.3d at 822. To justify a pat-down search, the officer must articulate “specific facts
that would warrant ‘a reasonably prudent man in the circumstances . . . in the belief that his safety
or that of others was in danger.’” Id. (quoting Terry, 392 U.S. at 27)).
The evidence discloses that Massucci, not Yuricek, frisked Plaintiff. In his deposition,
Massucci admitted to frisking Plaintiff. ECF No. 37-3 at 24. Yuricek denied frisking Plaintiff.
ECF No. 37-4 at 54. The dashboard video shows Massucci conducting the frisk. Massucci’s frisk
is the only search that Plaintiff speaks about in his deposition. ECF No. 37-2 at 122.
Because Yuricek did not conduct a pat down search of Plaintiff, the Court finds that Yuricek
did not violate Plaintiff’s constitutional rights by performing an unlawful search.
5. Prolonged Detention in Handcuffs
Plaintiff claims that Yuricek detained him in handcuffs for longer than was necessary.
According to Plaintiff, “[a]fter approximately one minute at the scene, the three officers had enough
information to reasonably determine that Lacey was not committing a crime.” ECF No. 35 at 14.
Defendants argue that the twelve minutes in which Yuricek and the other officers detained Plaintiff
was objectively reasonable because during that time the officers took proper steps to safeguard the
area, verify that Plaintiff was a bail bondsman, and verify that Bako had a warrant for her arrest.
ECF 36 at 12. Defendants also fault Plaintiff for failing to notify the Warren Police Department
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pursuant to O.R.C. § 2927.274 that he would be in the jurisdiction to apprehend Bako.
The Court reiterates that a “Terry stop cannot be excessively intrusive and must be
reasonably related in scope and duration to the purposes of the investigation.” Bennett, 410 F.3d
at 836. While the scope of the intrusion permitted in a Terry stop will vary with the facts of each
case, “the ‘detention must be temporary and last no longer than is necessary’ and ‘the investigative
methods employed should be the least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.’” Id. at 836 (quoting Royer, 460 U.S. at 500).
The Court has determined that the initial stop did not violate the Fourth Amendment, and
that Yuricek’s initial use of force and handcuffs is protected by qualified immunity. The Court
agrees that Yuricek, Hoolihan, and Massucci were entitled to conduct their investigation in a safe
environment. In addition, Plaintiff admitted that he did not inform the Warren Police Department
of his intention to apprehend Bako. ECF No. 37-2 at 73. Finally, Defendants’ assertion that the
investigatory detention lasted twelve minutes is supported by the evidence. The department radio
log shows that roughly twelve minutes passed between the time the officers arrived on the scene
and the time Yuricek and Massucci cleared the job. ECF No. 31-1 at 26.
While twelve minutes is not ordinarily a long time, there is no magic number below which
a detention will be reasonable. “[T]here is no bright line rule about the reasonable length of a Terry
detention.” Crisp v. City of Kenton, 142 F.3d 432, 1998 WL 180561 at *3 (6th Cir. April 8, 1998).
4
Section 2927.27(A)(3) of the Ohio Revised Code provides that a bail bondsman,
“prior to apprehending, detaining, or arresting the principal” must “notif[y] the local law
enforcement agency having jurisdiction over the area in which such activities will be
performed . . . .”
16
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The reasonableness of any detention must be predicated on the particular facts of the case. Here,
the facts are concerning. The dashboard video establishes that roughly two minutes into the stop,
Hoolihan had already confirmed that there was a “capias” for Bako’s arrest and had communicated
that information to Yuricek and Massucci. At that point in time, Plaintiff had told the officers
multiple times that he was a bail bondsman. The video also establishes that a metallic object in the
shape of a badge was clearly visible on Plaintiff’s belt. When Plaintiff was shown the video during
his deposition, he identified that object as his bail bondsman badge. ECF No. 37-2 at 120.
Furthermore, Yuricek and Massucci admitted that Plaintiff did not physically resist the officers or
behave aggressively at any time. ECF Nos. 37-3 at 20; 37-4 at 62. The video evidence corroborates
their testimony. At no point did Bako, the purported “victim,” accuse Plaintiff of abducting her.
The information available to Yuricek and the other officers two minutes into the stop was
sufficient to dispel any suspicion that Plaintiff had attempted to abduct Bako, or that he posed any
threat. Yet, Yuricek kept Plaintiff in handcuffs for an additional ten minutes. A jury is entitled to
believe that this amount of time was excessive. After the officers learned of Bako’s outstanding
capias, the video shows that Massucci performed a pat down search of Plaintiff and removed the
mace and collapsible baton from Plaintiff’s belt. A jury could believe that the search was
unwarranted. At that juncture, every indication pointed towards the conclusion that Plaintiff was
a bail bondsman on the scene performing his lawful duties. The only source of the officers’
suspicion–the 911 call–had been explained by the facts they had learned on the scene. Massucci
testified that he was not satisfied that Plaintiff was a bail bondsman until he found identification
in Plaintiff’s wallet. ECF Nos. 37-3 at 24; 37-2 at 106. Either he or Yuricek could have asked
17
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Plaintiff to produce the identification at the beginning of the detention. Instead, Plaintiff was kept
in handcuffs and searched. Viewing all the facts in the light most favorable to Plaintiff, there is a
genuine issue as to whether he was detained for an unreasonable period of time, and in an
unreasonable manner.
Other facts counsel in favor of the Court’s determination. Bako testified that she informed
the officers that Plaintiff was a bail bondsman. ECF No. 37-5 at 38. Although Bako’s testimony
is not corroborated by the video, as previously mentioned, the video ends roughly three minutes into
the stop and fails to capture the entire incident. Furthermore, the waning seconds of the video
footage captures the beginning of a conversation between Plaintiff and Yuricek that appears to serve
no law enforcement purpose. In response to Plaintiff’s comment, “You got a legal right to do what
you do. I got a legal right to do what I do,” Yuricek appears to say, “My legal right’s a lot higher
than yours.” The question of whether the detention was reasonably related in scope and duration
to the purposes of the investigation, therefore, should be decided by a jury.
The Court also concludes that qualified immunity does not attach with respect to the claim
of prolonged detention. Even assuming that a reasonable officer, having learned of Bako’s capias,
could believe that searching Plaintiff for weapons was proper, no reasonable officer could believe
that an additional ten minutes was needed to keep Plaintiff in handcuffs, pat him down, and
establish his identity. The officers could have immediately obtained confirmation of Plaintiff’s
identity by asking that he produce his bail bondsman identification; yet, this was not done until the
end. Plaintiff’s identity could have also been expeditiously established through Bako, who testified
that she informed the officers of Plaintiff’s identity. Rather than pursuing their investigation using
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(4:11CV02506)
the least intrusive means possible, the evidence shows, to the contrary, that Yuricek and the other
officers wielded their authority liberally and took their time during the detention.
That Plaintiff did not notify the Warren Police Department of his intention to apprehend
Bako does not change the preceding analysis. It is not lost on the Court that Plaintiff may not have
complied with the law and that this incident might have been averted had he provided the
appropriate notification. Nevertheless, Plaintiff’s mistake does not require him to forfeit his Fourth
Amendment rights.
The cases cited by Defendants do not support their claims that Yuricek’s actions were
lawful. Rather, the cases are factually distinguishable. In Radvansky, 395 F.3d at 309, the Sixth
Circuit held that police officers were justified in using handcuffs to detain a tenant who was
attempting to break into his residence after having been locked out by his landlord. In that case,
however, the police had received a call at night about a burglary in progress, had observed a broken
window and screen on the premises, had been informed by the homeowner that the suspect was
most likely not privileged to be there, and the suspect had told the police that he was armed with
stun gun. Id. Moreover, the issue in Radvansky was not the length of the investigatory detention.
In Crisp, 1998 WL 180561 at *1-*2, the Sixth Circuit held that police officers were justified in
detaining the plaintiff and three friends in handcuffs for “no more than 15 minutes” after responding
to a 911 call from an observer who reported seeing the men remove items from a residence. Later,
it was established that the residence belonged to the plaintiff’s father, that the plaintiff had
permission to be there, and that he possessed identification indicating the residence as his address.
The plaintiff alleged that his Fourth Amendment rights had been violated because the officers
19
(4:11CV02506)
continued to detain him even though they knew or should have known that he had permission to be
on the premises, and even though they should have believed his protestations of innocence and
immediately checked his identification. Yet, in Crisp, the plaintiff’s own expert testified that it was
proper procedure in such a case to delay review of a suspect’s identification after a search of a
dwelling’s perimeter, and that it was possible for one family member to burglarize the premises of
another family member. Here, unlike in Crisp, there was no perimeter to be searched, Plaintiff was
the only suspect on whom the officers focused5, and the facts immediately known to the officers
established a far stronger basis for innocence than the facts known by the officers in Crisp.
For the above reasons, Plaintiff’s prolonged detention claim shall be proceed to trial.6
5
The video shows Sartin, the individual who tackled Bako standing nearby in the
initial moments of the stop. That footage and the record reveal that the police showed no
interest in Sartin, as discussed below.
6
For the same reasons, the Court concludes that there is a genuine issue in regard
to whether the investigatory detention evolved into an arrest without probable cause. See
Dorsey, 517 F.3d at 398-99 (“When the nature of a seizure exceeds the bounds of a
permissible investigative stop, the detention may become an arrest that must be supported
by probable cause. . . . We consider such factors as the length of the detention, the manner
in which it is conducted, and the degree of force used in determining whether an
investigative stop is reasonably related to the basis for the original intrusion.” [citation
omitted]); Smoak, 460 F.3d at 780-81 (“When police actions go beyond checking out the
suspicious circumstances that led to the original [Terry] stop, the detention becomes an
arrest that must be supported by probable cause.”); United States v. Hardnett, 804 F.2d
353, 356 (6th Cir. 1986) (“resolving the question of whether a seizure is an investigative
stop, rather than an arrest, generally depends on the reasonableness of the stop under the
circumstances”), cert. denied, 497 U.S. 1097, 107 S. Ct. 1318, 94 L. Ed. 2d 171 (1987).
20
(4:11CV02506)
B. Fourteenth Amendment Claim
Plaintiff testified in his deposition that when Yuricek first approached him, Yuricek asked,
“What are you doing on this side of town” and “Why are you picking up white women?” ECF No.
37-2 at 98. Plaintiff testified that prior to handcuffing him, Yuricek threatened to throw his “black
ass” on the ground. ECF No. 37-2 at 102-103. Bako testified that the officers “used the ‘N’ word
several amounts of times” but did not identify which officer or officers as the speaker. ECF No.
37-5 at 16. As noted above, there is no dispute that the officers did not attempt to question or stop
Sartin, the Caucasian male who tackled Bako and was still on the scene when the police arrived.
Because of the foregoing, Plaintiff claims that Yuricek selectively enforced the law on the basis of
Plaintiff’s race. ECF No. 35 at 20.
The Sixth Circuit follows a three-part test for determining whether selective enforcement
of the law in violation of the Equal Protection Clause has occurred:
First, [an official] must single out a person belonging to an identifiable group, such
as those of a particular race or religion, or a group exercising constitutional rights,
for prosecution even though he has not decided to prosecute persons not belonging
to that group in similar situations. Second, [the official] must initiate the prosecution
with a discriminatory purpose. Finally, the prosecution must have a discriminatory
effect on the group which the defendant belongs to.
Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000) (quoting United States v. Anderson, 923
F.2d 450, 453 (6th Cir. 1991). With regard to the first element, Plaintiff must make a prima facie
showing that similarly situated persons outside his category were not prosecuted. Id. “In
determining whether individuals are similarly situated, a court should not demand exact correlation,
but should instead seek relevant similarity.” Bench Billboard v. City of Cincinnati, 675 F.3d 974,
21
(4:11CV02506)
987 (6th Cir. 2012) (quotations omitted). “[D]isparate treatment of persons is reasonably justified
if they are dissimilar in some material respect.” TriHealth, Inc. v. Board of Commissioners, 430
F.3d 783, 790 (6th Cir. 2005).
Yuricek testified that, prior to arriving on the scene, the dispatcher informed him that “a
while male, tackled a white female . . . who in turn handed the white female over to a black male.”
ECF No. 37-4 at 43. Thus, Yuricek knew that a white male was involved in the possible crime for
which he was responding. Furthermore, the Hoolihan’s dashboard video shows that when the
officers arrived on the scene, Sartin was standing nearby–approximately one house away from
Plaintiff’s Jeep on Belvedere Avenue.
Notwithstanding the above, the Court concludes that Plaintiff and Sartin were not similarly
situated individuals. When the police arrived, it was Plaintiff, not Sartin, who had custody of Bako
in a vehicle. Moreover, Plaintiff was driving the vehicle when the officers stopped him. Finally,
Plaintiff was visibly armed. At that juncture, Yuricek had reason to believe that Plaintiff was an
immediate threat to Bako–a threat that Sartin did not represent. Thus, Yuricek properly focused his
attention solely on Plaintiff. Moreover, the dashboard video shows that while Yuricek was ordering
Plaintiff to place his hands on his Jeep, Sartin walked away from the scene.
Therefore, the evidence establishes that Plaintiff and Sartin were not similarly situated for
the purposes of the detention, even though Yuricek knew that both men might have committed a
crime. Yuricek was presented with a choice of approaching one man as opposed to the other, and
he reasonably chose Plaintiff. While Yuricek might have attempted to prevent Sartin from leaving
the scene, that would have required Yuricek to abandon, or at least divert, his efforts to secure and
22
(4:11CV02506)
restrain Plaintiff, possibly to the detriment of the officers’ safety. Furthermore, Yuricek was not
the supervising officer on the scene–Massucci was. At no point did Massucci instruct Yuricek to
pursue Sartin. Finally, Yuricek had no reason to locate and pursue Sartin after the detention of
Plaintiff was over. By that time, it had been established that Bako was not a victim of an abduction.
While Plaintiff’s testimony regarding the racist language is concerning and is evidence of
a discriminatory motive, Plaintiff cannot show that he and Sartin were similarly situated individuals,
which must be demonstrated in a selective enforcement claim. Moreover, Yuricek is entitled to
qualified immunity, because a reasonable officer could believe no selective enforcement had
occurred because it was appropriate at the time to detain Plaintiff instead of Sartin.
C. Monell Claim
Plaintiff claims that genuine issues exist as to whether the City of Warren (hereafter “the
City”) caused the constitutional harms alleged by being “deliberately indifferent” to the inadequate
training, supervision, and discipline of its police officers. ECF No. 35 at 22. Defendants assert that
its training and disciplinary programs are adequate. ECF No. 31 at 22. Defendants proffer the
police department’s Policy and Procedure Handbook in effect at the time of the incident. See 31-1.
Defendants also present the affidavit of Eric Merkel, who manages the in-service training program
for the Warren Police Department. ECF No. 31-1 at 1. He testifies that from 2005 to 2009, Warren
police officers received thirty-five to forty hours of in-service training each year, conducted by
stated certified instructors and attorneys, regarding the use of force and impartial policing relating
to search and seizures. Finally, Defendants assert that they are entitled to summary judgement
because Plaintiff simply has presented no evidence that the City acted with deliberate indifference
23
(4:11CV02506)
with respect to the training, supervision, or discipline of its police officers. ECF No. 31 at 22.
In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91, 98
S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court announced that municipalities may be held
liable under § 1983 if the injury was caused by a “policy” or “custom” of the municipality. The
reason for restricting municipal liability to injuries caused by City policy or custom was the
Supreme Court’s determination in the same opinion that Congress did not intend for § 1983 to
impose respondeant superior liability upon municipalities for injuries inflicted solely by its
employees or agents. Id. at 695. Therefore, “[t]hat a plaintiff has suffered a deprivation of federal
rights at the hands of a municipal employee will not alone permit an inference of municipal
culpability and causation; the plaintiff will simply have shown that the employee acted culpably.”
Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 406-407, 117 S. Ct.
1382, 137 L. Ed. 2d 626 (1997) (emphasis in original). Rather, there must have been “deliberate
conduct” on the part of the municipality. Id. at 404.
After Monell, in City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S. Ct. 1197, 103 L.
Ed. 2d 412 (1989), the Supreme Court held that the existence of an inadequate police training
program may fairly be said to represent a municipal policy or custom of inadequate training, and
thus actionable under § 1983, when the failure to train “evidences a ‘deliberate indifference’ to the
rights of its inhabitants . . . .” The Canton Court identified two representative scenarios. First,
when “the need for more or different training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the policymakers of the city can reasonably be said to
have been deliberately indifferent to the need.” Id. at 390. Second, when “the police, in exercising
24
(4:11CV02506)
their discretion, so often violate constitutional rights that the need for further training must have
been plainly obvious to the city policymakers,” a finding of deliberate indifference is appropriate.
Id. at 390 n.10. In other words, “‘deliberate indifference’ is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of
County Commissioners of Bryan County v. Brown, 520 U.S. at 410.
Finally, “it is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the injury alleged.” Board of County
Commissioners of Bryan County v. Brown, 520 U.S. at 404. Therefore, in summary, “[i]n order to
establish a failure-to-train claim, [a plaintiff] must establish that: 1) the City’s training program was
inadequate for the tasks that officers must perform; 2) the inadequacy was the result of the [C]ity’s
deliberate indifference; and 3) the inadequacy was closely related to or actually caused the injury.”
Ciminillo v. Streicher, 434 F.3d 461, 469 (6th Cir. 2006). Claims of inadequate police supervisory
or disciplinary programs are evaluated under the same standard as a failure-to-train claim. See
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005), cert. denied, 546 U.S. 814, 126
S. Ct. 338, 163 L. Ed. 2d 50 (2005); Berry v. City of Detroit, 25 F.3d 1342, 1354 (6th Cir. 1994),
cert. denied, 513 U.S. 1111, 115 S. Ct. 902, 130 L. Ed. 2d 786 (1995).
In order to survive summary judgment, Plaintiff must minimally present evidence showing
that departmental programs with respect to the training, supervision, and discipline of police
officers are inadequate. In support of this requirement, Plaintiff presents the following evidence:
(1) an investigation conducted by the Department of Justice (“DOJ) between 2004 and 2006
25
(4:11CV02506)
regarding “an alleged pattern or practice of excessive force and illegal searches” throughout the
Warren Police Department; (2) Yuricek and Massucci’s lack of knowledge regarding the contents
of a Settlement Agreement reached between the DOJ and the City in 2012, in which the City agreed
to implement certain policy changes and additional training; and (3) the affidavit of Plaintiff’s
witness, Michael D’Amico, who testifies as to his belief that the “patterns of behavior in existence
prior to the 2004-2006 investigation may still be occurring by certain Warren Police Department
officers.” ECF Nos. 35 at 22-23; 35-9 at 2.
The foregoing evidence fails to create a genuine issue with respect to the adequacy of the
City’s police training, supervision, and discipline programs. First, Plaintiff fails to present evidence
of what the 2004-2006 DOJ investigation found. Although Plaintiff proffers the 2012 Settlement
Agreement in which the City agreed to make certain departmental changes, the City expressly
denied the allegations lodged by the DOJ. See ECF No. 4 at 3 in Case No. 4:12CV00086. Also,
Yuricek and Massucci’s lack of knowledge regarding the contents of the 2012 Settlement
Agreement does not mean, as Plaintiff claims, that departmental changes were not implemented as
planned. Third, D’Amico’s affidavit testimony fails to offer insight, supported by facts, with
respect to the state of departmental programs during the relevant time period. Finally, even if the
evidence presented by Plaintiff created a genuine issue of material fact that the police programs
were inadequate, Plaintiff has not introduced evidence of deliberate indifference on the part of the
City, or that the deliberate indifference was the cause of the injury.
Defendants have shown, therefore, that Plaintiff cannot prevail on a Monell claim. The
burden of the party moving for summary judgment “may be discharged by ‘showing’ – that is,
26
(4:11CV02506)
pointing out to the district court – that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). This claim cannot proceed to trial.
IV. Conclusion
Based on the above, the Court grants the motion for summary judgment, in part, and
denies it, in part. The only claim that survives is Plaintiff’s claim of prolonged detention.
The matter is scheduled for trial on January 13, 2014. A final pretrial will be held on
December 11, 2013 at 9 a.m.
IT IS SO ORDERED.
September 30, 2013
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
27
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