Louis Dana Gradisher v City of Akron, et al
Filing
99
Memorandum Opinion and Order: The City's motion for summary judgment on claim five is granted. The only claims now remaining for trial are Gradisher's claim of excessive force against Officer Craft (claim 1) and, to the extent they relate to the tasing, the state law claims against Craft of assault and battery (claim 8), gross neglect (claim 9), and intentional infliction of emotional distress (claim 11). (Doc. No. 48 .) Judge Sara Lioi on 6/1/2016. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LOUIS DANA GRADISHER,
PLAINTIFF,
vs.
CITY OF AKRON, et al.,
DEFENDANTS.
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CASE NO. 5:12-cv-2362
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court is the renewed motion for summary judgment filed by defendant City of
Akron (“the City”) as it relates to the claim of municipal liability (Doc. No. 48 [“Motion”]),
plaintiff’s brief in opposition (Doc. No. 52 [“Opp’n”]), and the City’s reply (Doc. No. 56
[“Reply”]). For the reasons set forth herein, the motion is granted.
I. BACKGROUND
Plaintiff filed his complaint on August 21, 2012 in the Summit County Court of Common
Pleas and defendants timely removed on the basis of federal question jurisdiction. The complaint
was subsequently amended twice. On September 2, 2014, this Court granted summary judgment
in favor of all defendants and dismissed the case. (See Doc. No. 60.)
Plaintiff appealed. The Sixth Circuit affirmed in part and reversed in part, summarizing
as follows:
One afternoon, plaintiff Louis Dana Gradisher consumed multiple
alcoholic drinks, then made several erratic phone calls to 911 complaining about
someone with a gun. When officers from the City of Akron Police Department
arrived at his residence and Gradisher locked his door and retreated upon seeing
them, they feared that someone inside might need help. The officers thereupon
broke down the door and entered the house. They found Gradisher hiding under a
sheet in his dark basement. What happened next is subject to debate, but after a
few seconds, one of the officers used a taser on Gradisher because he allegedly
resisted arrest.
Gradisher was later found guilty of improperly using the 911 system. He
filed an action against several police officers and the City of Akron, asserting
causes of action under 42 U.S.C. § 1983 for constitutional violations due to
excessive force, warrantless entry, and malicious prosecution, as well as several
common-law tort claims. After the parties filed cross-motions for summary
judgment, the district court ruled in the defendants’ favor on all claims. At issue is
whether the district court properly did so. …
***
Because there are genuine disputes of material facts related to whether
Officer Craft used excessive force in tasing Gradisher, we reverse the district
court’s grant of summary judgment to Craft on the excessive-force cause of action
[claim 1] and to the City of Akron on the corresponding municipal-liability cause
of action [claim 5]. For the same reason, we reverse the district court’s grant of
summary judgment to Craft on the state-law causes of action for assault and
battery [claim 8], intentional infliction of emotional distress [claim 11], and gross
neglect [claim 9] to the extent that they relate to the tasing.
We affirm the district court’s judgment in all other respects and remand
for proceedings consistent with this opinion.
Gradisher v. City of Akron, 794 F. 3d 574, 578, 581, 588 (6th Cir. 2015) (also noting that “[i]t is
undisputed that Officer Craft actually used the taser on Gradisher.”).
Although the Sixth Circuit reversed the grant of summary judgment with respect to the §
1983 municipal liability claim in the second amended complaint (claim five), it did so only
“because [it] reverse[d] the … grant of summary judgment to Craft on the excessive-force
claim[.]” Id. at 587. The court of appeals, however, noted that this Court “did not address
whether any municipal policy or custom allowed for the harms Gradisher allegedly suffered.” Id.
It “remand[ed] for the district court to determine in the first instance whether summary judgment
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should be granted to either party [on claim 5.]” Id. It “affirmed the district court’s ruling on
municipal liability in all other respects.” Id.
Therefore, following remand, the Court set deadlines for supplemental briefing on the
municipal liability claim. The City subsequently elected to rely upon the arguments on the issue
set forth in its original motion for summary judgment. (See Doc. No. 72-1, referencing Doc. No.
48.)
II. DISCUSSION
A.
Legal Standards
When a party files a motion for summary judgment, it must be granted “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.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the
record . . .; or (B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
The sole issue currently before the Court is whether the City can be held liable for Officer
Craft’s actions should plaintiff prove at trial that Craft used excessive force. A constitutional
violation by Officer Craft is a prerequisite to municipal liability because there is no
“authoriz[ation] [for] the award of damages against a municipal corporation based on the actions
of one of its officers when in fact … the officer inflicted no constitutional harm.” City of Los
Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (per curiam); see
also, Peet v. City of Detroit, 502 F.3d 557, 566 (6th Cir. 2007) (city “cannot be held liable under
§ 1983 for police conduct that inflicts no constitutional injury”) (citing Heller).
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“To prevail in a § 1983 suit against a municipality, a plaintiff must show that the alleged
violation occurred because of a municipal policy, practice, or custom; a municipality ‘may not be
sued under § 1983 for an injury inflicted solely by its employees or agents.’ Monell v. Dep’t of
Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); see also Connick v.
Thompson, 563 U.S. 51, 60, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011). Beyond having to
identify ‘conduct properly attributable to the municipality,’ a plaintiff ‘must also demonstrate
that, through its deliberate conduct, the municipality was the “moving force” behind the injury
alleged.’ Board of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d
626 (1997). In other words, ‘a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.’ Id.” Brown v. Chapman, 814 F. 3d 447, 462 (6th
Cir. 2016) (Text in Westlaw) (emphasis in original). Further, “considerably more proof than the
single incident will be necessary in every case to establish both the requisite fault on the part of
the municipality, and the causal connection between the ‘policy’ and the constitutional
deprivation.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 824, 105 S. Ct. 2427, 85 L. Ed. 2d
791 (1985) (footnotes omitted).
B.
The Parties’ Positions
The City argues in its motion1 that there is no record evidence of the following: (1) an
express City policy directing officers to use excessive force; (2) a widespread practice of
excessive force; (3) that a City official with final policy-making authority directed or authorized
the purported excessive force, or (4) that the City failed to train its officers after receiving
1
The relevant portion of defendant’s motion (Doc. No. 48) as it relates to claim five is located at pp. 337-340.
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repeated complaints of use of excessive force. (Motion at 339.) Defendant also argues that
plaintiff cannot prove liability under any form of ratification theory. (Id.) According to the City,
“[n]o evidence indicates that this was anything more than an isolated incident affecting only
Gradisher.” (Id. at 339-40, citing Fox v. Oosterum, 176 F.3d 343, 348 (6th Cir. 1999).)
Plaintiff, in opposition,2 asserts that the City has a policy and custom of ratifying use of
excessive force, of failing to conduct meaningful investigations into uses of force, and of failing
to train its officers in the proper use of force. In support of his argument that there are material
factual disputes precluding summary judgment on the municipal liability claim, plaintiff relies
upon the report of his expert, Roger A. Clark, a retired lieutenant with the Los Angeles County
(California) Sheriff’s Department. Clark retired after 27 years of service and since 1993 has been
a police procedures consultant. He has consulted and testified throughout the United States.
(Doc. No. 52-23 at 1122 [“Clark Decl.”] ¶ (1); Doc. No. 52-23 at 1123-40 [“Clark Report”] at
1136-40.)
In reply,3 defendant challenges the expert’s qualifications, asserting that his only
credential relating to use of tasers is that he owns two tasers, along with their download software,
and has reviewed all of the City’s taser training materials. (Reply at 1207-08, citing Clark Report
at 1140.) Further, defendant asserts that Clark’s “opinions” are no more than improper legal
conclusions, which must be rejected by the Court. (Id. at 1208-09.)
2
The relevant portion of plaintiff’s opposition brief (Doc. No. 52) is found at pp. 899-903.
3
The relevant portion of defendant’s reply brief (Doc. No. 56) is found at pp. 1209-1214.
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C.
Analysis
The gravamen of plaintiff’s municipal liability claim is “that there was no meaningful
investigation of the use of force and consequently a ratification of unconstitutional police action
by the City of Akron that creates a question of fact as to City liability.” (Reply at 1209; see also
Opp’n at 899-902.) Plaintiff also asserts that the City has a policy of failure to train its officers
against the use of excessive force. (Opp’n at 902.)
As already noted, plaintiff relies upon his expert’s opinion to support his argument in
favor of denying summary judgment on all aspects of the municipal liability claim as it relates to
Officer Craft’s alleged use of excessive force. The expert concluded:
4.
Officers are trained that the use of a Taser weapon is a significant use of
force that is only justified absent reasonable alternatives and only when
the totality of circumstances justifies its deployment. Additionally, officers
are trained that multiple applications of the Taser should be avoided and
are not expected when incapacitation is achieved (as documented here)
and handcuffing should occur during the “window of opportunity” created
by the first application of the weapon. The record is uncontested that
multiple tasings occurred in this incident. In my opinion, this incident does
not justify any use of the taser weapon whatsoever - let alone the multiple
tasings inflicted by Officer Craft that occurred here. I have also noted that
the Craft’s taser read-out shows that there was no time between tasings for
any officer to assess or provide opportunity for Mr. Gradisher to comply
in any way or for officers to handcuff him. Thus, Officer Craft did not
follow the tactical guidelines (as trained in V-17, and APD V-6), required
of every certified law enforcement officer, when he used a Taser against
Mr. Gradisher. When confronted by the officers in his basement, Mr.
Gradisher testified that he was sitting with his hands in the air. The police
reports have documented Mr. Gradisher’s similar position when they
discovered him. Mr. Gradisher never threatened to harm or physically
attack anyone in his home. Nonetheless, Officer Craft proceeded, absent
any physical threats toward the officers, to use his taser, which was
profoundly unnecessary and excessive.
***
6.
The use of force investigation conducted in this case was incomplete and
did not meet the professional investigative necessities to obtain and
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document the true facts, and is another indication of a seriously flawed
organizational culture within the APD [Akron Police Department] and its
command staff.
7.
According to the deposition testimony of all APD supervisors and
commanders (including Chief of Police Nice), that upon their review, no
departures from the established APD custom, practice, policy or procedure
occurred in this incident. The APD through its chain of command appears
to have endorsed the dangerous tactics and use of force that are connected
to this incident. As such, their collective approval of these tactics puts the
communities they serve at unnecessary future risk of death and/or injury
from the defendant APD officers and others on the department who have
been, or are now, similarly trained and/or supervised. It must be noted
here that Sergeant Joyner has testified that he has never in his entire career
(since 2008) investigated or reviewed a use of force by any APD officer
that he considered excessive and/or out of policy. Lieutenant Leeser
(according to Joyner) has approved 100% of Joyner’s conclusions. Chief
Nice has testified that he reviews approximately 250-300 force reports per
year and has only questioned 2 or 3 (.01 % - .04%). In my opinion this
sends a clear message to APD officers on the line that any use of force
they chose is acceptable within the APD.
(Clark Report at 1132-33.)
Although defendant generally challenges Clark’s specific credentials regarding the use of
tasers, another district court within the Sixth Circuit, applying its gate-keeping function under
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),
has certified Clark as an expert in “police practices.” See Lee v. Metro. Gov’t of Nashville &
Davidson Cnty., 596 F. Supp. 2d 1101, 1119-20 (M.D. Tenn. 2009)4 (“‘the proper actions of
individual officers in one discrete situation’ is an appropriate field for expert testimony, so long
as the expert has sufficient credentials and the testimony will assist the trier of facts[]” (quoting
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 907-08 (6th Cir. 2004)). The court in Lee
concluded:
4
Aff’d in part on other grounds, 432 F. App’x 435 (6th Cir. 2011).
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Plainly, Clark’s nearly three decades of experience in the police department,
including work as a high level supervisor, lecturer and instructor make him
uniquely qualified to discuss whether the defendants used an appropriate level of
force here, and whether Metro properly trained its officers in how to use the tools
that they were given. While Clark has limited experience working with the taser,
based on his experience, he is capable of understanding how a taser basically
works and whether a certain type of application would be unreasonable. The court
finds that this testimony is obviously relevant, and, based on Clark’s experience,
reliable, particularly given the defendants’ right to conduct a vigorous cross
examination. Whether his expertise is dated or his experience with tasers too
limited go to the weight of his testimony, not its admissibility.
Lee, 596 F. Supp. 2d at 1122. For purposes of this summary judgment motion, the Court will
assume that Clark qualifies as an expert.
As a threshold matter, there is no support in the Clark Report for municipal liability based
upon a failure to train theory. In paragraph 4 of the report, quoted above, Clark is clear that
Officer Craft “did not follow the tactical guidelines (as trained in V-17 and APD V-6)[.]” In
other words, Clark’s own conclusion is that Officer Craft was properly trained, but that he
deviated from his training when dealing with plaintiff. The City is entitled to summary judgment
to the extent there is a claim for municipal liability based on failure to train.
Plaintiff also makes a claim of municipal liability based on a theory that Officer Craft’s
actions were ratified by the City’s policy of failing to meaningfully investigate uses of force,
which, in turn, led officers like Craft to believe that “any use of force they chose is acceptable
within the APD.” (Clark Report at 1133, ¶ 7.) To prevail on this claim, plaintiff “must show not
only that the investigation was inadequate, but that the flaws in this particular investigation were
representative of (1) a clear and persistent pattern of illegal activity, (2) which the Department
knew or should have known about, (3) yet remained deliberately indifferent about, and (4) that
the Department’s custom was the cause of the shooting here.” Thomas v. City of Chattanooga,
398 F.3d 426, 433 (6th Cir. 2005) (citing Doe v. Claiborne Cnty., 103 F.3d 495, 508 (6th Cir.
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1996)); see also Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013) (“a custom-of-tolerance claim
requires a showing that there was a pattern of inadequately investigating similar claims.”) (citing
Thomas, 398 F.3d at 433; Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989)).
Plaintiff has failed to make any such showing. The Clark Report concludes, in ¶ 7, that
the “chain of command appears to have endorsed the dangerous tactics and use of force that are
connected to this incident [between Officer Craft and Gradisher]” and “sends a clear message …
that any use of force [officers] chose is acceptable[.]” This is based on one fact – Chief Nice’s
testimony that, of the 250-300 use of force reports he reviews each year, he has only questioned
2 or 3. But, without knowing the content of each report, these statistics are meaningless. See,
e.g., Thomas, 398 F.3d at 432 (the expert’s conclusion “that the [p]olice [d]epartment must have
an unwritten policy of condoning excessive force because of the mere number of complaints
previously filed against it[] is insufficient to create a genuine issue of material fact on which a
jury could reasonably find that such a policy exists”).
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III. CONCLUSION
For the reasons set forth herein, the City’s motion for summary judgment on claim five is
granted.
The only claims now remaining for trial are Gradisher’s claim of excessive force against
Officer Craft (claim 1) and, to the extent they relate to the tasing, the state law claims against
Craft of assault and battery (claim 8),5 gross neglect (claim 9), and intentional infliction of
emotional distress (claim 11).6
IT IS SO ORDERED.
Dated: June 1, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
5
The City was also named in the assault and battery claim; but the Court of Appeals reversed only the summary
judgment “in Craft’s favor,” and then only to the extent the claim may be related to the tasing. Gradisher, 794 F.3d
at 587.
6
Under federal law, the question of whether a police officer used excessive force is an objective one, Graham v.
Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), whereas the three remaining state law claims
are all torts, with a question of intent and/or willfulness as a central element of each, and with a focus on the mental
state of the alleged wrong-doer. The jury will be required to understand and apply several distinct standards. This
will require more lengthy testimony, more lengthy jury instructions, and, very possibly, jury confusion. Moreover,
this additional time, effort, and confusion will serve no purpose because, even if plaintiff prevails on all of these
claims, he cannot double-recover on any damages he might prove. Johnson v. Howard, 24 F. App’x 480, 484-85
(6th Cir. 2001) (citing Gen. Tel. Co. v. EEOC, 446 U.S. 318, 333, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980)). The
Court encourages plaintiff to consider voluntarily dismissing the state law claims.
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