Beans v. City of Massillon, et al
Memorandum Opinion and Order: For all of the foregoing reasons, plaintiff's motion for summary judgment is denied, and defendants' summary judgment motions are granted. This case is dismissed. (Related Doc. Nos. 46 , 48 , 49 ). Judge Sara Lioi on 12/30/2016. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CHERYL BEANS, Individually and as
Administratrix of the Estate of Shane Allen
CITY OF MASSILLON, et al.,
CASE NO. 5:15-cv-1475
JUDGE SARA LIOI
Before the Court are the following dispositive motions: (1) the motion of defendants City
of Massillon (“Massillon”), Kathy Catazaro-Perry (“Catazaro-Perry”), William Peel (“Peel”),
Paul Covert (“Covert”), Jason Greenfield (“Greenfield”), and David McConnell (“McConnell”)
(collectively “Massillon defendants”) for summary judgment (Doc. No. 46 [“Massillon MSJ”];
(2) the motion of defendants City of Canton (“Canton”), William Healy II (“Healy”), Bruce
Lawver (“Lawver”), David Davis (“Davis”), Lisa Broucker (“Broucker”), Charles Saler
(“Saler”), Donald Miller (“Miller”), Travis Pellegrino (“Pellegrino”), and Brandon Shackle
(“Shackle”) (collectively “Canton defendants”) for summary judgment (Doc. No. 48 [“Canton
MSJ”]; and (3) the motion of plaintiff Cheryl Beans (“plaintiff” or “Beans”) for summary
judgment (Doc. No. 49 [“Plaintiff MSJ”]). The motions are fully briefed. (See Doc. No. 58
(Plaintiff’s Opposition to Massillon Defendants’ Summary Judgment Motion [“Massillon MSJ
Opp’n”]); Doc. No. 84 (Reply Brief in Support of Massillon Defendants’ Summary Judgment
Motion [“Massillon MSJ Reply”]); Doc. No. 60 (Plaintiff’s Opposition to Canton Defendants’
Summary Judgment Motion [“Canton MSJ Opp’n”]); Doc. No. 83 (Reply Brief in Support of
Canton Defendants’ Summary Judgment Motion [“Canton MSJ Reply”]); Doc. No. 55
(Massillon Defendants’ Response to Plaintiff’s Summary Judgment Motion [“Plaintiff MSJ
Massillon Opp’n”]); Doc. No. 67 (Canton Defendants’ Response to Plaintiff’s Summary
Judgment Motion [“Plaintiff MSJ Canton Opp’n”]); Doc. No. 85 (Reply Brief in support of
Plaintiff’s Motion for Summary Judgment as against Canton Defendants [“Plaintiff MSJ ReplyCanton”]); Doc. No. 86 (Reply Brief in Support of Plaintiff’s Motion for Summary Judgment as
against Massillon Defendants [“Plaintiff MSJ Reply-Massillon”])).
For the reasons to follow, the motions of Massillon defendants and Canton defendants for
summary judgment are granted, and plaintiff’s summary judgment motion is denied.
The tragic events that supply the foundation for the present civil rights action were set in
motion with a walk. On July 28, 2013, Shane Ryan (“Ryan” or “deceased”) called his exgirlfriend2, Taylor McLendon (“McLendon”). Unable to reach her by phone, Ryan decided to
walk 10 miles to the Great Clips Hair Salon in Massillon, Ohio, where McLendon was
employed. It is undisputed that, along the way, Ryan placed a called to the Crisis Intervention
and Recovery Center (“Crisis Center”). Given the distressed nature of Ryan’s call, a
representative of the Crisis Center contacted the Stark County Sheriff’s Office and reported the
call. Using GPS tracking technology or triangulation, the Stark County Sherriff’s Office was able
to determine that Ryan was in Massillon. (Doc. No. 71 (Deposition of Jason Greenfield
For purposes of framing the issues raised in defendants’ summary judgment motions, the Court takes the facts
supported by competent evidence in a light most favorable to plaintiff. In doing so, the Court notes that many of the
facts relied upon by plaintiff are either unsupported by the record or supported by incompetent evidence that the
Court may not consider on summary judgment.
It is unclear from the record whether McLendon and Ryan were currently in a romantic relationship at the time of
the shooting, or whether any such relationship had previously ended. For purposes of summary judgment, it is a
distinction without a difference.
[“Greenfield Dep.”]) at 2050-52.3) The sheriff’s office contacted the Massillon Police
Department and requested assistance in locating Ryan. (Id. at 2050-51.)
While local law enforcement was looking for him, Ryan arrived at the salon only to
discover that McLendon was not there. What happened next is disputed, but the parties agree that
the customers present in the salon vacated the building and one of the salon’s employees,
Heather Patterson (“Patterson”), ended up with Ryan in a small room in the back of the salon.4
Shortly after the customers left the store, some unidentified person placed a 911 call from the
salon to the Massillon Police Department and hung up. Responding to the call, Massillon police
were dispatched to the salon. (Id. at 2053.)
Sergeant Brian Muntean (“Muntean”) was the first Massillon police officer to arrive at
the scene. Once there, Muntean radioed dispatch and, with “a lot of stress in his voice,”
requested backup advising that a hostage situation had developed at the salon and that the
suspect was possibly armed with a gun. (Greenfield Dep. at 2063; Doc. No. 69 (Deposition of
David McConnell [“McConnell Dep.”]) at 1952.) Greenfield was the Massillon officer in charge
All references to page numbers are to the page identification numbers generated by the Court’s electronic filing
Plaintiff has suggested in briefing that Heather Patterson willingly went with Ryan to the utility room. All of the
evidence in the record, however, demonstrates that Patterson was a hostage, held in the back room against her will
by Ryan. For example, officers consistently testified in their depositions that Patterson could be heard, at various
times, whimpering or crying. (Greenfield Dep. at 2138; see Doc. No. 69 (Deposition of David McConnell
[“McConnell Dep.”]) at 1956.) Ryan also made repeated threats to kill Patterson, and even inquired about
exchanging Patterson with McLendon. (Greenfield Dep. at 2079; Doc. No. 62 (Deposition of Charles Saler [“Saler
Dep.”]) 1486.) All of this evidence is consistent with the fact that Patterson was a hostage. Plaintiff has pointed to no
competent evidence that would suggest that Patterson agreed to accompany Ryan into the back room, or that she
remained there of her own volition. Further, plaintiff has also failed to identify any evidence that would suggest that
the officers believed that Patterson was Ryan’s guest in the utility room. In addition to the threats by Ryan and the
observed actions of Patterson crying, it is undisputed that the Sergeant Muntean immediately reported that there was
a “hostage situation” developing at the salon. (Greenfield Dep. at 2063; McConnell Dep. at 1952.) Indeed, all of the
information available to the officers at the scene would have led any reasonable officer to conclude that Ryan had
taken a hostage.
of the shift that day, and he immediately left the station for the salon. (Greenfield Dep. at 2053.)
Defendant McConnell, a detective with the Massillon Police Department, along with various
other Massillon police officers, also responded to the call for assistance. (McConnell Dep. at
When he arrived on the scene, McConnell was advised by Muntean that a suspect named
Shane Ryan had barricaded himself in a small utility room at the rear of the salon with a hostage,
later identified as Heather Patterson. (McConnell Dep. at 1953.) Ryan could be heard in the
utility room yelling, and he appeared to be very upset. (Id.) Through the door that separated the
utility room from the rest of the salon, Ryan demanded to speak with McLendon, and was heard
to say “I’m going to die today. You [the police] will have to kill me. I’m going to force you guys
to kill me.” (Greenfield Dep. at 2064; see McConnell Dep. at 1954.) Patterson could also be
heard through the door “whimpering[.]” (Greenfield Dep. at 2138.) Officers could tell that
Patterson was also very upset. (McConnell Dep. at 1956.)
Within moments of his own arrival on the scene, Greenfield determined that the police
were facing a “very serious situation[.]” (Greenfield Dep. at 2074.) Because Massillon did not
have its own special weapons and tactics team (“SWAT”), Greenfield called dispatch to inquire
as to the availability of other local SWAT teams. (Id.) He was advised that members of Canton’s
Regional SWAT could arrive within 40 minutes. (Id. at 2075.)
Defendant Saler, a Sergeant with Canton’s Police Department and the leader of the
Canton Regional SWAT, was contacted and apprised of the situation. (Doc. No. 62 (Deposition
of Charles Saler [“Saler Dep.”]) at 1462-63.) Pursuant to established protocol, Saler contacted
defendant Lawver, Chief of the Canton Police Department, for the purpose of establishing that
permission had been granted for the Canton Regional SWAT to assist the Massillon police force
in dealing with the stand-off. (Id. at 1464.) He was advised that the appropriate officials from
Massillon and Canton had communicated and determined that the Canton Regional SWAT
would offer its services. (Id. at 1465-66.) Saler then used a telephone notification system to
summon other SWAT members to report for an emergency hostage mission. (Doc. No. 48-7
(Affidavit of Charles Saler [“Saler Aff.]) ¶ 2.) Defendants Shackle and Pellegrino, both Canton
police officers and members of Canton Regional SWAT, reported to the Canton Police Station.
Defendant Miller reported directly to the scene. (Id.)
While Greenfield, McConnell, and other Massillon police officers waited for Canton
Regional SWAT members to arrive, McConnell initiated a conversation with Ryan through the
closed door in an attempt to build a rapport with Ryan and calm him down. (McConnell Dep. at
1955-56.) During this conversation, Ryan indicated that he needed a cigarette. (Id. at 1958.) On
the counter of the salon, McConnell found a plastic shopping bag with loose tobacco, materials
for rolling cigarettes, and a lighter. (Id. at 1958-60; Greenfield Dep. at 2065.) Ryan agreed to
exchange the materials in the bag for several weapons, including scissors and a folding pocket
knife. (McConnell Dep. at 1957.) The exchange was made when Ryan cracked the door open.
(Id. at 1960-61.)
Approximately 15 minutes after the exchange, McConnell placed a call to Ryan and
asked to speak with Patterson. (McConnell Dep. at 1962-63.) Once she was on the line,
McConnell asked Patterson if she was all right and inquired as to whether Ryan had any other
weapons in the utility room. At first, Patterson said she was not sure, but she later stated that she
did not see any other weapons. (Id. at 1964.)
When Canton Regional SWAT arrived on the scene, Greenfield met the team’s members
in the salon’s parking lot and began to brief them on the situation. (Greenfield Dep. at 2080;
Saler Dep. at 1475, 1484.) Saler and the other SWAT members were advised that Massillon
police had been negotiating with Ryan for approximately one and one half hours, that he had a
hostage, and that he had informed the officers that he would either kill a police officer or be
killed by one. (Saler Aff. ¶ 3.) They were also informed that Massillon officers did not know if
Ryan had any other weapons. (Id.)
Following the briefing, Greenfield escorted the SWAT members to the salon where they
could hear Ryan yelling and screaming from the back room. It was clear to Greenfield that the
situation had “turned really nasty really fast.” (Greenfield Dep. at 2080; see also id. at 2138 [“the
level of everything had changed”]; Saler Dep. at 1486 [the situation had changed “drastically”].)
Greenfield and the SWAT members were informed that a call had been arranged between Ryan
and McLendon that had ended with Ryan yelling, “You caused this”, and when McConnell
rejected Ryan’s suggestion that McLendon be traded for Patterson, the communications broke
down entirely and Ryan terminated the call. (Greenfield Dep. at 2079.)
Ryan’s next comment through the door put everyone on high alert. Yelling, Ryan
threatened the officers, stating “You’ve got [so many] minutes5, and then I’m going to blow the
place up.” (McConnell Dep. at 1994.) Ryan informed the officers that he had opened up the
natural gas lines, and he was going to kill the hostage and use his lighter to cause an explosion in
the building. (Saler Dep. at 1486.) As Ryan was conveying this threat, Patterson, who had been
whimpering, was “crying really loud.” (Greenfield Dep. at 2138.) With these new threats from
Ryan, the officers assembled agreed that the situation had significantly escalated to the point
where it was necessary to breach the utility room. (Saler Dep. at 1490; McConnell Dep. at 1964-
McConnell could not remember the exact time frame Ryan suggested, but it was a matter of minutes. (McConnell
Dep. at 1994.)
65; Doc. No. 72 (Deposition of Paul Covert [“Covert Dep.”]) at 2259-60.)
Saler formulated the hostage rescue plan. Because of the new risk of a gas explosion, he
had to rule out the use of distraction devices, such as the beanbag shotgun and or a taser. (Saler
Dep. at 1504.) As he and his team were preparing to enter the utility room, Saler heard Ryan,
again, screaming that he was going to blow up the building and kill the hostage. (Id. at 1502.)
Saler gave the order to storm the room. (Doc. No 66 (Deposition of Donald Miller [“Miller
Dep.”]) at 1862; see Saler Dep. at 1494.) Saler was first through the door, and, as he entered, he
announced “Police, down now, let her go.” (Saler Dep. at 1512; see id. at 1506.) Instead of
heeding Saler’s command, Ryan tried to ignite the lighter he had in his hand, which sparked but
did not light. (Id. at 1505.) Ryan also moved behind Patterson, putting his arm around her neck.
(Id. at 1507.)
Saler testified in his deposition that he attempted to use his ballistic shield to separate
Patterson from Ryan. (Id. at 1512.) When that did not work, Saler shot Ryan once around his
lower left rib cage. (Id. at 1515-16.) Ryan continued to hold onto Patterson and the lighter, and
Saler shot Ryan again; this time the bullet hit the left side of Ryan’s head. (Id. at 1516-17.) The
entire exchange took only a few seconds. (Id. at 1522, 1539, 1549.) After Ryan fell to the
ground, officers attempted to administer first aid, but Ryan ultimately died from his injuries.
Shortly after the stand-off, an internal investigation was conducted by the Stark County
Sheriff’s Office during which individuals who were at the scene, including Patterson and various
Canton and Massillon police officers, were interviewed. No charges were ever filed in
connection with the death of Ryan, and there is no record of any disciplinary action taken against
any of the participants.
On July 27, 2015, plaintiff, as the administratrix of Ryan’s estate, brought suit in this
Court against defendants. The complaint raises federal claims for violations of the Fourth and
Fourteenth Amendments and the Due Process Clause, failure to train and supervise, excessive
force, conspiracy, municipal liability, and failure to accommodate under Title II of the
Americans with Disabilities Act (“ADA”). Plaintiff also raises state law claims for wrongful
death, state law conspiracy, negligence and gross recklessness, gross negligence and deliberate
indifference, intentional and negligent infliction of emotional distress, and survivorship. All
individual defendants were sued in their individual and official capacities. (Doc. No. 1
On October 2, 2015, the Court conducted a case management conference. At the request
of the parties, the Court agreed to bifurcate discovery in this matter, allowing for an initial period
of discovery and motion practice limited to the question of whether the individual defendants
were entitled to qualified immunity. (Minutes Oct. 2, 2015.) After the completion of this initial
discovery period, each party joined in one of three summary judgment motions.
II. STANDARD OF REVIEW
Summary Judgment Standard
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).
In reviewing summary judgment motions, this Court must view the evidence in a light
most favorable to the non-moving party to determine whether a genuine issue of material fact
exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970);
White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly
overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113
L. Ed. 2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the
lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). Determination of whether a factual issue is “genuine” requires consideration of the
applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is
entitled to a verdict[.]” Id. at 252.
Once the moving party has presented evidence sufficient to support a motion for
summary judgment, the nonmoving party is not entitled to trial merely on the basis of
allegations; significant probative evidence must be presented to support the complaint.” Goins v.
Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary
judgment may not rely solely on the pleadings but must present evidence supporting the claims
asserted by the party. Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (Summary
judgment is appropriate whenever the non-moving party fails to make a showing sufficient to
establish the existence of an element essential to that party’s case and on which that party will
bear the burden of proof at trial). Moreover, conclusory allegations, speculation, and
unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported
motion for summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 487 U.S. 871, 888, 110 S. Ct.
3177, 111 L. Ed. 2d 695 (1990). In other words, to defeat summary judgment, the party opposing
the motion must present affirmative evidence to support his or her position; a mere “scintilla of
evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (quotation
marks and citation omitted). Rule 56 further provides that “[t]he court need consider only” the
materials cited in the parties’ briefs. Fed. R. Civ. P. 56(c)(2); see also Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (“The trial court no longer has the duty to search the
entire record to establish that it is bereft of a genuine issue of material fact.”) (citing Frito-Lay,
Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)).
The summary judgment standard does not change when a court is presented with crossmotions for summary judgment. Profit Pet v. Arthur Dogswell, LLC, 603 F.3d 308, 312 (6th Cir.
2010) (citing Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). “The fact that
both parties have moved for summary judgment does not mean a court must grant judgment as a
matter of law for one side or the other; rather, a ‘court must evaluate each party’s motion on its
own merits, taking care in each instance to draw all reasonable inferences against the party
whose motion is under consideration.’” Id. (quoting Taft, 929 F.2d at 248); see 60 Ivy St. Corp. v.
Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987) (the threshold requirement for all parties who
seek summary judgment under Rule 56 demands that the moving party come forward with
competent evidence showing that there is no genuine issue of material fact and that the movant is
entitled to judgment in her favor as a matter of law) (citation omitted).
Defendants’ Motions to Strike
Plaintiff’s opposition to defendants’ summary judgment motions relies heavily upon the
unsworn interviews of various individuals who were at the scene, and were later interviewed as
part of the post-shooting investigation conducted by the Stark County Sherriff’s Office. In
particular, plaintiff places significant weight on the interview of Massillon Police Officer Kervin
Brown, who was neither sued as a defendant, nor deposed during discovery. Both the Canton and
the Massillon defendants move to strike the uncertified transcript of Officer Brown’s interview,
as well as the transcripts of other interviews conducted by Stark County. (Doc. No. 54 (Massillon
Defendants’ Motion to Strike [“Massillon Mot. Strike”]); Doc. No. 56 (Canton Defendants’
Motion to Strike [“Canton Mot. Strike”]).) It is the position of both sets of defendants that the
unsworn testimony of Brown and others is not acceptable evidence under Rule 56.
A party seeking or opposing summary judgment may rely on deposition transcripts,
electronically stored documents, affidavits, declarations, and other materials. Fed. R. Civ. P.
56(c)(1)(A). Defendants argue that, because the interview of Officer Brown is not an affidavit, a
sworn declaration, a deposition, or a signed interrogatory answer under oath, it represents
incompetent hearsay testimony that cannot be relied upon to defeat summary judgment. “It is
well established that a court may not consider hearsay when deciding a summary judgment
motion.” Tranter v. Orick, 460 F. App’x 513, 514 (6th Cir. 2012) (unsworn witness statements
taken during police investigation were properly excluded from consideration on summary
judgment) (citations omitted); see Dole v. Elliott Travel & Tours, Inc., 942 F. 2d 962, 968 (6th
Cir. 1991) (“Affidavits composed of hearsay and opinion evidence do not satisfy [Rule 56] and
must be disregarded.”) (quotation marks and citation omitted); Purdy v. Newland, No. 93-2110,
1994 WL 601341, at *1 n.1 (6th Cir. Nov. 2, 1994) (transcript of private investigator’s unsworn
interviews could not be considered on summary judgment) (citations omitted); see also Harris v.
J.B. Robinson Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010) (citation omitted).
Plaintiff suggests that the unsworn statement of Brown and others interviewed as a part of
the internal police investigation may properly be considered because they were produced during
discovery. She cites generally to case law that provides that evidence produced pursuant to Rule
26 can be relied upon to support or oppose summary judgment. The fact that the unsworn
transcripts were produced during discovery does not cure the fact that they contain inadmissible
hearsay. In Pollino v. City of Phila., No. Civ. A. 03-6288, 2005 WL 372105 (E.D. Pa. Feb. 15,
2005), a civil rights plaintiff attempted to offer the unsworn statements of three witnesses who
were interviewed as part of a police investigation into a shooting death to oppose summary
judgment. The witnesses were never deposed in discovery, but the statements were produced
during discovery as part of the police’s internal files regarding the shooting. The court ruled that
the unsworn statements could not be construed as “competent evidence” and could not be relied
upon when reviewing summary judgment. Id. at *7 (citation omitted).
Further, the court held that the fact that the statements were produced in discovery as a
response to an interrogatory inquiring as to the identity of potential trial witnesses did not mean
that the statements were incorporated into the evidence of the case. Id. (“The unsworn statements
alleged to be incorporated by reference in the interrogatory answer are clearly nothing more than
hearsay that would not be admitted at trial for substantive purposes” and “is not considered when
reviewing summary judgment.”) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 & 159
n.19, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)). While acknowledging that answers to
interrogatories can be used as “competent evidence” to defeat summary judgment, the mere
mention of a police report containing these unsworn witness statements did not elevate them to
the status of an affidavit based on personal knowledge under Rule 56(e). To permit such an
expansive interpretation of the word “affidavit”, the court concluded, “would have an unsworn
statement be treated as the equivalent of an affidavit without the speaker swearing to the
accuracy of the statement or testifying under oath that he or she is competent to give such
testimony.” Id. at *7. The Court finds the reasoning in Pollino persuasive. Like the case in
Pollino, the unsworn interview transcripts alleged to have been incorporated by reference in the
interrogatory answer are “clearly nothing more than hearsay that would not be admitted at trial
for substantive purposes.” Id.
Plaintiff offers the affidavit of Brian Arnold, a Major with the Stark County Sheriff’s
Office, in which Arnold avers that he is the custodian of the records associated with the
investigation into the shooting death of Ryan, and that the transcripts of the unsworn interviews
of Brown and others are true and accurate copies of the investigation records. (Doc. No. 59
(Affidavit and Certificate of Authentication of Brian Arnold) at 1284.) She suggests that this
affidavit demonstrates that the transcripts are public records that are admissible under Fed. R.
Evid. 803(8) as an exception to the hearsay rule. To be sure, Arnold’s affidavit solves the
problem originally identified by defendants that the transcript was unauthenticated. See
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (unauthenticated documents do not
meet the requirements of Fed. R. Civ. P. 56 and are inadmissible) (citations omitted). Arnold’s
affidavit establishes that the interviews of Brown and the other witnesses at the scene of the
shooting took place as part of the Stark County Sheriff’s investigation, and that the transcripts
were produced as recordings of those interviews. This is not sufficient, however, to bring the
statements contained in the transcripts within Rule 803(8)(A)(iii)6 because the transcripts contain
no fact findings. Rather, they are “simply a compilation of witness statements, all of which are
hearsay.” Tranter, 460 F. App’x at 515 (witness statements contained in a police report were not
public records under former Rule 803(8)(C)) (citing, among authority, United States v. Mackey,
Rule 803(8)(A)(iii) and (B) excepts “A record or statement of a public office if: it sets out: in a civil case or against
the government in a criminal case, factual findings from a legally authorized investigation; and the opponent does
not show that the source of information or other circumstances indicate a lack of trustworthiness.”
117 F.3d 24, 28 (1st Cir. 1997) (“In line with the advisory committee note to Rule 803(8),
decisions in this and other circuits squarely hold that hearsay statements by third persons . . . are
not admissible under this exception merely because they appear within public records)).
Because the unsworn statements contained in the interview transcripts prepared as part of
the internal investigation into the shooting were hearsay, and no exception to the hearsay rule
would have permitted their admission,7 the Court rules that it may not consider them in ruling on
summary judgment. Defendants’ motions, and supplemental motions, to strike are granted.
Qualified Immunity and Defendants’ Dispositive Motions
The Massillon and Canton defendants assert that qualified immunity protects the police
officers and municipal officials from liability for all federal claims asserted against them in their
individual capacities. The qualified immunity doctrine shields government officials performing
discretionary actions from civil damages liability if their actions did not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.
Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quotation
marks and citation omitted). “Qualified immunity provides police officers ‘breathing room to
make reasonable but mistaken judgments and protects all but the plainly incompetent or those
who knowingly violate the law.’” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting
Stanton v. Sims, --U.S.--, 134 S. Ct. 3, 5, 187 L. Ed. 2d 341 (2013)). Qualified immunity will
apply “‘if officers of reasonable competence could disagree on the issue.’” Id. (quoting Malley v.
Likewise, the Court rejects plaintiff’s unsupported argument that the unsworn statements qualify under Rule
801(d)(2)(D) as an admission by an agent of a party. Compare Grizzell v. City of Columbus Div. of Police, 461 F.3d
711, 722 (6th Cir. 2006) (statement of deputy police chief on subject of police promotions constituted an admission
by a party) with Perry v. City of Pontiac, 254 F.R.D. 309, 316 (E.D. Mich. 2008) (rank-and-file police officers’
statements would not constitute admissions by the city under Rule 801(d)(2)).
Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)); see Ewolski v. City of
Brunswick, 287 F.3d 492, 501 (6th Cir. 2002) (qualified immunity will apply unless it is obvious
that no reasonably competent official would have concluded that the action was lawful).
Courts employ a two-part test to determine if qualified immunity applies. First, courts
determine whether the facts, taken in a light most favorable to the party alleging injury, show an
officer’s conduct violated a constitutional right. Ewolski, 287 F.3d at 501; see Saucier v. Katz,
533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Second, if a constitutional right
was violated, courts must determine “whether the violation involved a clearly established
constitutional right of which a reasonable person would have known.” Peete v. Metro. Gov’t of
Nashville & Davidson Cnty., 486 F.3d 217, 219 (6th Cir. 2007) (quotation marks and citation
omitted). If a plaintiff fails to establish either prong, he has failed to carry his burden, and
judgment is appropriate for the defendant. Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th
Cir. 2009). Since the failure of either prong is dispositive in favor of a defendant, the Court may
address either prong first.8 See Pearson, 555 U.S. at 236.
It is axiomatic that a citizen has a constitutional right, secured by the Fourth Amendment,
not to be subjected to excessive force during an arrest, investigatory stop, or other “seizure” of
his person. See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989). Excessive force cases are analyzed under an “objective reasonableness” standard. Id. at
388. Whether or not a use of force is reasonable requires balancing of “the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the importance of the
On some occasions, it may be necessary to employ a third step, which is whether the plaintiff “‘offered sufficient
evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights.’” Thacker v. Lawrence Cnty., 182 F. App’x 464, 468 (6th Cir. 2006) (quoting
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004)).
governmental interests alleged to justify the intrusion.” Tenn. v. Garner, 471 U.S. 1, 8, 105 S. Ct.
1694, 85 L. Ed. 2d 1 (1985) (quotation marks and citation omitted). Determining reasonableness
“requires careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8-9). “This is an objective test, to
be ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’” Withers v. City of Cleveland, 640 F. App’x 416, 419 (6th Cir. 2016)
(quoting Graham, 490 U.S. at 396). “This standard contains a built-in measure of deference to
the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances
of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citation omitted).
An officer’s use of deadly force is reasonable only if “‘the officer has probable cause to
believe that the suspect poses a threat of death or serious physical harm either to the officer or
others.” Garner, 471 U.S. at 11; see Williams v. City of Grosse Pointe Park, 496 F.3d 482, 487
(6th Cir. 2007) (“[A]n officer may use deadly force whenever he or she, in the face of a rapidly
unfolding situation, has probable cause to believe that a suspect poses a serious threat either to
the police or members of the public.”) (citations omitted). Ultimately, the plaintiff bears the
burden of demonstrating that any force used was unjustified in order to establish a constitutional
deprivation. Miller v. Taylor, 877 F.2d 469, 472 (6th Cir. 1989) (citations omitted).
As an initial matter, plaintiff advances the rather novel argument that the individual
defendants lack standing to assert qualified immunity because the Massillon defendants
“abdicated” their authority when they enlisted the services of the Canton Regional SWAT and
permitted this group to take control of the stand-off. (Massillon MSJ Opp’n at 1259.) In support,
plaintiff cites Article XVII, Section III, of the Ohio Constitution. Known as the “Home Rule”
Amendment, this section provides that “[m]unicipalities shall have authority to exercise all
powers of local self-government and to adopt and enforce within their limits such local police,
sanitary and other similar regulations, as are not in conflict with general laws.” Ohio Const. art.
XVIII, § III. It is plaintiff’s position that the Canton defendants usurped the constitutional
authority given to Massillon to govern within its municipal boundaries when the Canton
Regional SWAT took charge of the situation at the salon. Plaintiff believes that “[t]his
usurpation of constitutional authority cannot be a legitimate police function[,]” and, therefore,
the individual defendants from both municipalities were not performing legitimate, discretionary
functions when deadly force was used against Ryan. (Canton MSJ Opp’n at 1434.)
Plaintiff’s creative (albeit wholly frivolous) argument represents a fundamental
misunderstanding of the Home Rule Amendment. The purpose of the amendment was to
“distinguish between state and municipal lawmaking authority.” Am. Fin. Servs. Ass’n v.
Cleveland, 858 N.E.2d 776, 781 (Ohio 2006). It “gives municipalities the ‘broadest possible
powers of self-government in connection with all matters which are strictly local and do not
imping upon matters which are of a state-wide nature or interest.’” Mothers Against Drilling in
Our Neighborhood v. State, 60 N.E.3d 727, 731(Ohio Ct. App. 2016) (quoting State ex rel.
Hackley v. Edmonds, 80 N.E.2d 769, 773 (Ohio 1948)). The only restriction on a municipality’s
authority to act within its boundaries, under the amendment, is the prohibition against passing
laws that conflict with the Ohio Constitution or its laws. See Ohio Const. art. XVIII, § III.
The amendment does not prohibit, as plaintiff suggests, local municipalities from
enlisting the aid of other municipalities or law enforcement entities, nor do the statutory laws of
the State of Ohio forbid it.9 In fact, the Ohio Revised Code specifically sanctions it. Section
737.04 of the Ohio Revised Code provides that a municipality may “enter into contracts with one
or more municipal corporations, township police districts, [or] joint police districts . . . for
services of police departments or the use of police equipment or for the interchange of services
of police departments . . . within the several territories of the contracting subdivision.” Ohio Rev.
Code § 737.04.10 Further, section 737.041 permits a police department of any municipality to
provide police protection, upon approval, to any other municipality. Ohio Rev. Code § 737.041.
See State ex rel. Ohio Civil Serv. Employees Ass’n v. City of Coshocton, 448 N.E.2d 834, 835
(Ohio Ct. App. 1982).
Thus, the Massillon defendants were clearly exercising legitimate job-related police
functions when they responded to a hostage situation within its boundaries, and then called for
the assistance of the Canton Regional SWAT. Likewise, the Canton defendants did not usurp
Massillon’s authority when it agreed to assist. Because all members of law enforcement were
engaged in job related police functions when they responded to the stand-off at the salon and
Even plaintiff’s authority—a decision issued by the Supreme Court of Washington—does not support her position
that the individual defendants lack standing to assert qualified immunity. In Brown v. City of Cle Elum, 261 P. 112,
113 (Washington 1927), the court, applying a similar “home rule” amendment, held that a municipality exceeded its
authority when it passed an ordinance punishing certain proscribed acts committed on property six miles beyond the
corporate limits of the municipality. Thus, the decision is clearly distinguishable from the situation before this Court
where a municipality lawfully requested assistance within its own boundaries. Moreover, later Washington state
court cases made clear that Washington’s version of the “home rule” amendment did “not prohibit [a] municipality
or county from entering into a legislatively authorized contract with another municipality or county, which is in
whole or part outside its borders, to preform functions for the latter that the latter had authority to provide within its
borders.” See Lakehaven Util. Dist. v. Pierce Cnty., No. 60007-9-I, 145 Wash. App. 1019, at *3 (Wash Ct. App.
June 23, 2008).
In fact, pursuant to this statutory section, Ohio courts have held that a municipal corporation is not even required
to maintain its own police department and may contract for all of its police protection to be provided by another
municipality or law enforcement entity. See State ex rel. Ohio Civil Service Employees Ass’n v. City of Coshocton,
448 N.E.2d 834, 835 (Ohio Ct. App. 1982).
encountered Ryan, they were acting within their discretionary authority and may assert qualified
The Court now turns to the merits of defendants’ dispositive motions. Because of the
factually particularized nature of the qualified immunity analysis, “‘[e]ach defendant’s liability
must be assessed individually based on his own actions.’” Pollard v. City of Columbus, 780 F.3d
395, 402 (6th Cir. 2015) (quoting Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)). “‘To
hold an officer liable for the use of excessive force, a plaintiff must prove that the officer (1)
actively participated in the use of excessive force, (2) supervised the officer who used excessive
force, or (3) owed the victim a duty of protection against the use of excessive force.’” Id.
(quoting Binay, 601 F.3d at 650).
Because Saler led the team that breached the utility room and was most directly involved
in the use of force against Ryan, the Court begins its individualized inquiry with him. The first
question the Court must answer as to this defendant is whether, under the totality of
circumstances, it was objectively reasonable for Saler to use deadly force against Ryan. The
Court finds it was. The undisputed competent evidence demonstrates that the police responded to
a hostage situation, wherein the suspect had, at various times, been armed with a knife and
Plaintiff has also suggested that defendants lack standing because it cannot be a legitimate police function to
“provide an accelerant and ignition device to a suicidal man and then immediately kill him for possessing them[.]”
(Canton MSJ Opp’n at 1435.) This misrepresents the nature of the Court’s inquiry. “[T]o pass the first step of the
discretionary function test for qualified immunity, the defendant must have been performing a function that, but for
the alleged constitutional infirmity, would have fallen with his legitimate job description.” See Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004) (In determining “whether a police officer may assert
qualified immunity against a Fourth Amendment claim, [the Court does] not ask whether he has the right to engage
in unconstitutional searches and seizures, but whether engaging in searches and seizures in general is a part of his
job-related powers and responsibilities.”) (emphasis in original) (citation omitted).
scissors and had threatened to kill the hostage. He also had informed officers that he had opened
a gas line and was planning to cause an explosion with a lighter. Moreover, when the officers
breached the utility room, Ryan attempted to ignite the lighter and refused to release the hostage.
Even after the first shot was fired, Ryan refused to release the hostage or the lighter.
According to these undisputed facts, each of the Graham factors weighs heavily in favor
of applying qualified immunity as Saler, and the officers, faced a serious hostage situation,
involving a suspect who—rather than give up—had informed the officers that they would have to
kill him. Further, while the hostage did not see any other “weapons” in the utility room, various
officers testified that they could not rule out the presence of other sharp instruments that could be
used as weapons, and, in any event, they knew that Ryan was threatening to use the lighter as a
Judging Saler’s conduct from the perspective of a reasonable officer on the scene rather
than with the 20/20 vision of hindsight, the Court finds that Saler’s actions were objectively
reasonable under the circumstances. Ryan’s actions would have led any reasonable officer to
believe that he posed an immediate and significant threat to the safety of the hostage and the
officers in the building. See Pollard, 780 F.3d at 403 (qualified immunity available where
officers mistakenly believed defendant had a gun, the defendant had made gestures toward the
police suggesting he had a weapon, and he demonstrated that he was willing to do almost
anything, including endangering his own life, to avoid arrest); Bell v. Irwin, 321 F.3d 637, 63940 (7th Cir. 2003) (affirming qualified immunity for officers’ use of force where suspect
threatened to blow up his house using propane gas and had indicated to police that he would only
come out “feet first”); see, e.g., Wells v. City of Chattanooga, Tenn., No. 1:09-CV-219, 2011 WL
2749563, at *4-6 (E.D. Tenn. July 14, 2011) (qualified immunity protected officers where
officers used deadly force to neutralize a suspect who had advised officers that they would have
to kill him and it was reasonably believed that he may have taken hostages).
It is worth underscoring the undisputed fact that the officers did not make the decision to
even attempt a rescue of the hostage until “after a dramatic change in circumstance”; namely,
Ryan threatening to kill the hostage and blow up the building. See Pollard, 780 F.3d at 403
(referring to the suspect making gestures indicating that he had a weapon) (emphasis in original).
Further, the undisputed record demonstrates that only a few seconds expired between the time
the officers entered the utility room and Saler shot Ryan twice. “While the evaluation of
reasonableness must . . . recognize that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation . . . , the fact that a situation unfolds relatively
quickly does not, by itself, permit officers to use deadly force.” Withers, 640 F. App’x at 419
(quotation marks and internal citations omitted). Still, the fact that a dangerous situation was
“tense, uncertain and rapidly evolving” weighs in favor of finding qualified immunity. See Rush
v. City of Lansing, 644 F. App’x 415, 421 (6th Cir. 2016) (“Immediately before [the officer]
fired the first shot, [the suspect] drew a knife and slashed at [the officer] from an arm’s length
away. Under those circumstances, it was not unreasonable for [the officer] to use deadly force by
shooting at” him.) (quotation marks and citation omitted); Mullins, 805 F.3d at 767 (the officer
“was faced with a rapidly escalating situation, and his decision to use deadly force in the face of
a severe threat to himself and the public was reasonable”); see also Pollard, 780 F.3d at 403 (“It
is [the facts related to the suspect’s threatening gestures] immediately preceding the shooting
which weigh most heavily in assessing the officers’ split-second decision to shoot.”) (citation
In opposing summary judgment on qualified immunity, plaintiff relies on the unsworn
statements of Brown and another officer, Jolina Boyer, who were interviewed during the
investigation that followed the shooting to support her position that the hostage was safely out of
the utility room before Officer Saler opened fire on Ryan. (See, e.g., Massillon MSJ Opp’n at
1254-55.) It is plaintiff’s belief that this evidence establishes a fact dispute as to whether there
was still a risk of death or serious injury to the hostage when Saler used deadly force. The Court
disagrees, as it has already ruled that plaintiff may not rely on this incompetent evidence to
generate a genuine issue of material fact in the face of a properly supported summary judgment
However, even if these unsworn interview transcripts were properly before the Court,
they would not serve to create a fact dispute sufficient to defeat summary judgment. Neither
officer was in the utility room when Saler and his team breached it, as both Massillon officers
had been asked to retreat to allow Canton SWAT access to the room. Additionally, neither
officer stated that the hostage was safely out of the building when the shots were fired. Officer
Boyer indicated that, “As they [Canton SWAT members] made entry I heard two shots fired and
saw the victim hysterical and screaming face down near the doorway, body probably half in half
out.” (Doc. No. 59-5 (Interview of Patrolman Jolina Boyer [“Boyer Int.”]) at 1335.) Similarly,
Officer Brown ambiguously stated that he heard the shots as “we’re taking [Patterson] out of the
building.” (Doc. No. 59-11 (Interview of Patrolman Kervin Brown [“Brown Int.”]) at 1351.)
Even by their accounts, the hostage was in the process of being removed from the room and the
building at the time, and was still in jeopardy of being injured by an explosion.
Of course, even if the hostage had been safely escorted out of the building, the officers
were still at risk of being injured in the explosion Ryan was threatening to cause. An officer may
factor in the risk of serious injury to himself and his fellow officers, in addition to the risk to
members of the public, into the calculation of whether to employ deadly force against a suspect.
See Garner, 471 U.S. at 11; Williams, 496 F.3d at 487. It is undisputed that Ryan had previously
threatened to blow up the building, and that he was still holding the lighter when Canton SWAT
entered the room. Given the fluid nature of the events that were rapidly unfolding, the Court
cannot (and will not) second guess the decision to use deadly force. See also Plumhoff v.
Rickard, --U.S.--, 134 S. Ct. 2012, 2022, 188 L. Ed. 2d 1056 (2014) (“if police officers are
justified in firing at a suspect in order to end a severe threat to public safety, the officers need not
stop shooting until the threat has ended”).
Plaintiff also criticizes defendants because they did not take steps to cut off the gas
supply to the utility room, “even though it could have been turned off by hand at the back door.”
(Canton MSJ Opp’n at 1427.) In support, she offers pictures depicting the gas meters at the back
of the salon. (Doc. Nos. 59-7, 59-8, 59-9, 59-10.) There is no evidence in the record, however,
that, if believed, would establish that the gas being supplied to the utility room could have been
shut off using the gas meters shown in the photograph, or that it could have been done within the
brief time frame imposed by Ryan before he planned to blow up the building. Instead, defendant
Miller testified that the procedure followed by the police would be to contact the gas provider
and have the provider cut off the gas supply. (Miller Dep. at 1842-43.) Saler testified that this
procedure can be “as quick as a half hour and as long as four hours.” (Saler Dep. at 1541.) In
other words, there is no evidence it could have been done quickly enough. More to the point,
even if the failure to shut off the utilities represented a miscalculation on the part of defendants,
the qualified immunity analysis clearly allows for good faith mistakes in judgment, and there is
no evidence that any such miscalculation (if there was a miscalculation) was intentional. See
Chappell, 585 F.3d at 907 (citing Pearson, 555 U.S. at 231).
Ultimately, the Court finds that Ryan posed an immediate serious threat to the hostage
and the officers inside the building at the time Saler shot him.12 Consequently, the use of lethal
force was reasonable and Saler is entitled to summary judgment on the issue of qualified
immunity. Further, because a reasonable fact-finder, viewing the facts in the light most favorable
to plaintiff, could not find that Saler violated Ryan’s constitutional rights through excessive use
of force, it is unnecessary to consider whether any allegedly violated right was clearly
established at the time of the incident.
Other Individual Defendants
All other individual defendants from both Canton and Massillon are entitled to summary
judgment on the issue of qualified immunity because plaintiff has failed to identify genuine
issues of material fact as to whether Ryan’s constitutional right to be free from excessive force
was violated. Even if Ryan’s constitutional rights had been violated, and those same rights were
clearly established at the time of the shooting, Miller, Pellegrino, and Shackle would be entitled
to qualified immunity because there is no evidence that they could have intervened to prevent the
use of force by Saler. Though they were in the utility room at the time of the shooting, it is
undisputed that the entire incident occurred in a matter of seconds. See Ontha v. Rutherford
Cnty., Tenn., 222 F. App’x 498, 506 (6th Cir. 2007) (“courts have been unwilling to impose a
Plaintiff also relies on photographs of Ryan’s body that were contained in the coroner’s report, and suggests these
photographs “contradict” Saler’s account of the incident because they “show that Ryan’s right arm had been at his
side when Saler shot thorough the arm and into the chest.” (Canton MSJ Opp’n at 1442, citing Doc. No. 59-20 and
59-21.) Plaintiff represents that “[t]his is significant because it shows that while Saler admitted he knew what was in
Ryan’s right hand he must have also known that nothing could be used in the left.” (Canton MSJ Opp’n at 1442.) As
Canton defendants have correctly observed, however, the photographs actually show Ryan’s left arm, which was
near his side and being used to hold the hostage close to him, which is consistent with Saler’s testimony. (Saler Dep.
duty to intervene where, as here, an entire incident unfolds ‘in a matter of seconds’”) (collecting
cases). The same holds true for Officer McConnell, who was not even in the utility room at the
time of the shooting, and had even less of an opportunity to intervene.
Plaintiff has attempted to assert liability for the use of force by Saler against the
remainder of the individual Massillon defendants by alleging that they permitted what she has
referred to as the “abdication of authority” that led to the Canton Regional SWAT being placed
in a position to use force against Ryan. Similarly, plaintiff’s primary theory of liability against
the remaining individual Canton defendants is their alleged usurpation of Massillon’s authority
to exercise its police powers within its geographic district. As this Court has already determined,
however, the Massillon defendants properly permitted the Canton Regional SWAT to participate
in, and take control of, the stand-off. Thus, the remaining defendants are entitled to qualified
immunity as against any allegations that polices they implemented, or supervision they provided,
led to the cooperative effort by Massillon and Canton to address the hostage situation that led to
Remaining Claims in the Complaint and Plaintiff’s Motion to Strike
Defendants also seek dismissal of the remaining claims in the complaint, including
plaintiff’s ADA and state law claims. Noting that the Court bifurcated this case and limited the
initial period of discovery to the issue of excessive force and the availability of qualified
immunity, plaintiff argues that defendants’ summary judgment motions seek rulings that are
outside the qualified immunity boundaries set by the Court’s case management plan. Plaintiff
moves to strike defendants’ summary judgment arguments that the remaining claims should be
dismissed, or, in the alternative, to hold in abeyance these arguments until after the qualified
immunity issue has been resolved. (Doc. No. 50 [“Plaintiff Mot. to Strike”].)
In support of her motion to strike, plaintiff suggests defendants’ summary judgment
motions “stray into areas in which discovery has not yet been permitted by this Court.” (Id. at
1201.) Plaintiff has a point, and, to the extent that defendants’ dispositive motions sought rulings
on subject matters for which no discovery has taken place, the Court would agree that any ruling,
without the opportunity for discovery, would be premature. However, as will be seen below, the
discovery that has been conducted regarding the July 28, 2013 shooting incident, as well as the
Court’s ruling on the availability of qualified immunity, foreclose the possibility the remainder
of the claims can be maintained.13 Accordingly, plaintiff’s motion to strike is denied.
Monell Liability and Failure to Train
Plaintiff seeks to hold Massillon and Canton liable under a theory that the policy and
customs implemented by these municipalities resulted in a deprivation of Ryan’s constitutional
rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978). However, “the constitutional violation of a municipal official is a prerequisite to
municipal liability.” Pollard, 780 F.3d at 404 (citing Weeks v. Portage Cnty. Exec. Offices, 235
F.3d 275, 279 (6th Cir. 2000)). Because the Court has determined that Ryan’s constitutional
rights were not violated by the use of force employed against him, defendants are entitled to
summary judgment on plaintiff’s claim of municipal liability. See, e.g., Robertson v. Lucas, 753
F.3d 606, 622 (6th Cir. 2014); Pollard, 780 F.3d at 404; see also Los Angeles v. Heller, 475 U.S.
Additionally, the Court notes that plaintiff fully briefed defendants’ arguments that they were entitled to summary
judgment on the remaining claims in the complaint. In doing so, plaintiff failed to identify any additional discovery
that was required to fully respond to defendants’ motions.
796, 799, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (“Neither Monell . . . nor any other of our
cases authorizes the award of damages against a municipal corporation based on the actions of
one of its officers when in fact the jury has concluded that the officer inflicted no constitutional
Conspiracy under Federal Law (42 U.S.C. § 1983)
The Court’s ruling on qualified immunity also dooms plaintiff’s federal conspiracy claim.
“A civil conspiracy [under Federal law] is an agreement between two or more persons to injure
another by unlawful action.” Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011)
(quotation marks and citation omitted). To prevail on a civil conspiracy claim under 42 U.S.C. §
1983, a plaintiff must show: (1) a single plan existed; (2) the defendants shared in the general
conspiratorial objective to deprive plaintiff of his constitutional or federal statutory rights; and
(3) an overt act was committed in furtherance of the conspiracy that caused injury to the plaintiff.
Id. at 602 (citation omitted).
The complaint alleges that the defendants conspired to injure Ryan [by shooting and
killing him] by unlawful means. (Compl. ¶ 279.) Beyond this conclusory allegation, however,
plaintiff has failed to allege any facts in support of her federal conspiracy claim, rendering the
claim fatally deficient. See Robertson, 753 F.3d at 622 (a plaintiff must plead the existence of a
conspiracy with some degree of specificity); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.
2003) (same). In addition to the pleading deficiency, however, the claim fails because the Court
has determined that Ryan’s constitutional right to be free from excessive force was not violated.
Because plaintiff’s conspiracy claim was premised on defendants’ use of force, the conspiracy
claim ails, as well.14 See Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 463 (6th Cir. 2011)
(citing, among authority, Wiley v. Oberlin Police Dep’t, 330 F. App’x 524, 530 (6th Cir. 2009)
(where plaintiff failed to show an underlying constitutional violation that injured her, plaintiff
cannot prevail on her conspiracy claim).
Substantive Due Process
Plaintiff’s substantive due process claim is based on allegations that Ryan’s death was the
result of a state created danger. Plaintiff argues that Saler and the other Canton Regional SWAT
members manufactured the danger from a possible explosion by supplying a mentally unstable
and suicidal man with a lighter. (Canton MSJ Opp’n at 1436 [While defendants “supplied the
room with an unending stream of natural gas, [d]efendants handed Ryan a cigarette lighter.”].)
To establish a state created danger claim, a plaintiff must show: (1) an affirmative act by the state
that created or increased the risk to the plaintiff; (2) a special danger to the victim as
distinguished from the public at large; and (3) the requisite degree of state culpability. McQueen
v. Beecher Cmty. Schs., 433 F.3d 460, 464 (6th Cir. 2006) (citation omitted). Under this theory of
liability, the officers’ acts must be made with “deliberate indifference.” Farmer v. Brennan, 511
U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Sixth Circuit has “equated
[deliberate indifference] with subjective recklessness.” Cutlip v. City of Toledo, 488 F. App’x
107, 117 (6th Cir. 2012) (“[The] plaintiff [must] show that the state ‘official knows of and
Plaintiff’s state law conspiracy claim is pled with even less specificity than the one brought under § 1983. Indeed,
the Thirteenth Claim for Relief provides simply that “Said acts (referring to all factual allegations in the complaint)
constituted the tort of civil conspiracy under Ohio law.” (Compl. ¶ 277.) Under Ohio law, a claim for civil
conspiracy requires “‘a malicious combination of two or more persons to injure another in person or property, in a
way not competent for one alone, resulting in actual damages.’” Kenty v. Transamerica Premium Ins. Co., 650
N.E.2d 863, 866 (Ohio 1995) (quoting Le-Fort v. Century 21-Maitland Realty Co. 512 N.E.2d 640, 645 (Ohio
1987)). The only facts plaintiff alleges that would support the existence of a conspiracy involve the decision by
officials from Massillon and Canton to use Canton Regional SWAT, a decision that the Court has already
determined was lawful. Additionally, without an underlying tort, this derivative claim must fail. See Burgess v.
Fischer, 735 F.3d 462, 483 (6th Cir. 2013) (quotation marks and citation omitted).
disregards an excessive risk to [the victim’s] health or safety . . . in a manner demonstrating
‘reckless or callous indifference’ toward the individual’s rights.”) (quoting Ewolski, 287 F.3d at
513) (further quotation marks and citation omitted). And where the police are choosing from a
number of risky options, “‘a plaintiff must show that the police ‘knowingly and unreasonably’
opted for a course of conduct that entailed a substantially greater total risk than the available
alternatives.’” Id. (quoting Ewolski, 287 F.3d at 515). The Court’s ruling on qualified immunity
is fatal to plaintiff’s substantive due process claim.
Although the officers traded Ryan’s deadly weapons for cigarettes and a lighter, there is
no evidence that the officers acted with deliberate indifference to a risk of injury to Ryan, or that
they could have foreseen that the exchange would lead to an escalation of the situation. Rather,
they reasonably convinced Ryan to exchange known dangerous weapons in his possession for
cigarette rolling material and a lighter. It was Ryan who created the dangerous situation by
turning a fairly innocuous cigarette lighter into a mechanism to trigger a dangerous explosion.
See, e.g., Camp v. Knox Cnty, Tenn., No. 3:14-CV-257-PLR-HBG, 2015 WL 461642, at *4
(E.D. Tenn. Feb. 3, 2015) (rejecting “state-created danger” theory of liability because the suspect
created the danger by barricading himself in a bedroom with a weapon). Further, it is undisputed
that Ryan did not threaten to use the cigarette lighter as a weapon until more than fifteen minutes
after the trade when communications with his ex-girlfriend had broken down. There is no
evidence that the officers could have anticipated this development, let alone deliberately opted
for a course of conduct that was obviously going to result in a need to employ deadly force.
Defendants are entitled to summary judgment on this claim.
Title II of the ADA and Failure to Train
Plaintiff alleges that defendants violated the ADA by failing to reasonably accommodate
Ryan’s disability by neglecting to transport him to a mental health facility. (See Compl. ¶ 265.)
Plaintiff also alleges that Canton and its supervisory employees failed to properly train its
employees regarding interaction with mentally disabled individuals. While the pleading is not
entirely clear, plaintiff’s ADA claim appears to rest on allegations that various individual
defendants failed to take steps to deescalate the situation, and, instead, supplied Ryan with a
cigarette lighter and failed to cut off the supply of gas to the utility room. (Id. ¶¶ 267-270.) As
part of her claim, she alleges that Ryan was not a threat to police officers once he was barricaded
in the utility room until officers supplied him with a lighter and natural gas. (Id. ¶ 267.) See
Jones v. Lacey, 108 F. Supp. 3d 573, 588 n.1 (E.D. Mich. 2015) (citing Everson v. Leis, 412 F.
App’x 771, 774 (6th Cir. 2011) (“‘[W]hether Title II applies to arrests is an open question in [the
Sixth] Circuit . . . .’”)). The Court assumes for the purposes of this analysis, however, that Title
II ADA claims arising in the context of a police stand-off and attempted arrest are viable in this
Plaintiff complains that any ruling on her ADA claim would be premature as the parties
have not yet conducted any discovery relative to Ryan’s alleged mental impairments. However,
even if the Court assumes that Ryan was disabled for purposes of the ADA, its ruling that
officers acted objectively reasonable in using deadly force in response to a dangerous and
quickly evolving hostage situation precludes this claim.
“Under the ADA, ‘No qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs
or activities of a public entity, or be subjected to discrimination by any such entity.’” Thompson
v. Williamson Cnty., Tenn., 219 F.3d 555, 557 (6th Cir. 2000) (quoting 42 U.S.C. § 12132). In
the Sixth Circuit,
To establish a prima facie case of intentional discrimination under Title II of the
ADA, a plaintiff must show that: (1) he has a disability; (2) he is otherwise
qualified; and (3) he was being excluded from participation in, denied the
benefits of, or subjected to discrimination under the program because of [his]
Anderson v. City of Blue Ash, 798 F.3d 338, 357 & n.1 (6th Cir. 2015) (citing Tucker v. Tenn.,
539 F.3d 526, 532 (6th Cir. 2008) and Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir.
2005), but eliminating the requirement that discrimination be “solely” because of plaintiff’s
disability, finding that in Title II claims, discrimination must be shown to have been “because
of” the individual’s disability.) A prima facie case requires a plaintiff to show that the
discrimination was intentionally directed toward him or her in particular.” Tucker, 539 F.3d at
532 (emphasis in original).
In Thompson, a police officer responded to a 911 call from the decedent’s brother, who
indicated that the decedent was threatening family members with a machete. The responding
officer was forced to shoot to kill when the decedent raised a machete as if to throw it at the
officer. Id. at 556. The Sixth Circuit ruled that the ADA claim failed, as a matter of law, because
the decedent was not denied access to a public service and, if he was, it was not because of
disability. Id. at 557. The court reasoned that the officer’s failure to disarm and transport the
decedent to a hospital for treatment was not the result of inadequate training in dealing with
mental disabled individuals, but was because the decedent “threatened him with a deadly weapon
before he could subdue him. Thus, if the decedent was denied access to medical services it was
because of his violent, threatening behavior, not because he was mentally disabled.” Id. at 558
(citation omitted). See Wolfanger v. Laurel Cnty, Ky., 308 F. App’x 866, 867-68 (6th Cir. 2009)
(county and officers were entitled to summary judgment on plaintiff’s Title II ADA and failure
to train claims because it was objectively reasonable for officers to use deadly force against
disabled man who pointed a gun at them); Dillery, 398 F.3d at 568 (plaintiff could not establish a
prima facie case of discrimination where the record reflected that plaintiff was stopped by the
police because her practice of operating her motorized wheelchair in the street was a safety
hazard, not because of her disability); see also Tucker, 539 F.3d at 536 (concluding that when
“officers are presented with exigent or unexpected circumstances, it would be unreasonable to
require certain accommodations be made in light of the overriding public safety concerns”).
Similarly here, the Court’s ruling that Saler acted in an objectively reasonable manner
when he employed deadly force in response to Ryan’s threatening behavior forecloses plaintiff’s
Title II ADA claim. The failure to disarm Ryan and transport him for treatment was not the result
of inadequate training with dealing with mentally unstable individuals, but because Ryan
threatened to kill his hostage and the officers before he could be subdued. Accordingly, he was
not denied access to medical care because of any disability, but because of his own threatening
and dangerous behavior. Moreover, in light of the volatile and rapidly evolving circumstances
faced by the officers at the scene, it would have been unreasonable to require the officers to
attempt to accommodate Ryan’s disability before neutralizing the danger Ryan’s conduct
created. Plaintiff’s Title II ADA claim, therefore, is subject to dismissal. See Tucker, 539 F.3d at
536; Scozzari v. City of Clare, 723 F. Supp. 2d 974, 981 (E.D. Mich. 2010) (“if [plaintiff’s]
behavior was highly alarming, it would seem unreasonable to require the Officers to take the
time to contact a mental health professional”) (citation omitted).
State Claims and Tort Immunity
Section 2744 of the Ohio Revised Code extends to municipalities immunity from tort
liability for governmental and propriety functions. Ohio Rev. Code § 2744.02(A)(1); Chesher v.
Neyer, 477 F.3d 784, 796 (6th Cir. 2007). It is well settled that “government functions” include
the operations of law enforcement. See § 2744.01(C)(2)(a); Harris v. Sutton, 918 N.E.2d 181,
185 (Ohio Ct. App. 2009). There are, however, certain exceptions to the general grant of
immunity spelled out in the statute. Specifically, immunity is not available to a municipality
where: (1) injury or damage is caused by a municipal employee’s negligent operation of a motor
vehicle [§ 2744.02(B)(1)]; (2) the losses are due to the negligent performance of employees with
respect to proprietary functions of a political subdivision [§ 2744.02(B)(2)]; (3) damages are the
result of a municipality’s negligent failure to keep public roads in repair [§ 2744.02(B)(3)]; (4)
damages are the result of a physical defect on the grounds of public buildings used for
government functions [§ 2744.02(B)(4)]; and (5) civil liability is expressly imposed by another
provision of the Ohio Revised Code § 2744.02(B)(5).
Based on the undisputed record facts regarding the incident leading to the shooting death
of Ryan, there can be no doubt that Canton and Massillon qualify for immunity under Ohio Rev.
Code § 2744.02(A)(1), as its employees were engaged in the governmental function of police
activities while at the hair salon on July 28, 2013. Further, there are no exceptions that would
apply to the circumstances as they are known following the period of discovery on qualified
immunity. Thus, to the extent that the municipalities are sued under state law, they are entitled to
immunity for plaintiff’s state tort claims. See generally Hout v. City of Mansfield, 550 F. Supp.
2d 701, 744 (N.D. Ohio 2008) (“Ohio courts have held that political subdivisions are entitled to
immunity under § 2744.02 for the intentional torts committed by their employees.”) (collecting
Ohio Rev. Code § 2744 also provides immunity for tort actions for employees of political
subdivisions, provided their acts and omissions were not “manifestly outside the scope of the
employee’s employment or official responsibilities” or were taken “with malicious purpose, in
bad faith, or in a wanton or reckless manner[.]” Ohio Rev. Code § 2744.03(A)(6)(b). “Malice” is
the “willful and intentional design to injure or harm another, usually seriously, through conduct
that is unlawful or unjustified.” Otero v. Wood, 316 F. Supp. 2d 612, 629 (S.D. Ohio 2004)
(citations omitted). “Bad faith” includes a “dishonest purpose, conscious wrongdoing, or breach
of a known duty through some ulterior motive.” Id. “Wanton misconduct” is defined as “the
failure to exercise any care toward those to whom a duty of care is owned in circumstances in
which there is a great probability that harm will result.” Anderson v. City of Massillon, 983
N.E.2d 266, 273 (Ohio 2012) (citation omitted). “Reckless 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.
Based on the same analysis presented above with respect to federal qualified immunity,
the Court concludes that there are no genuine issues of material fact and that the individual
defendants are entitled to immunity from liability in connection with plaintiff’s state law claims.
In the same way in which she failed to demonstrate that Saler’s actions were objectively
unreasonable, plaintiff has also failed to show that Saler and the other individual defendants
acted with “malicious purpose, in bad faith, or in a wanton or reckless manner.” Chappell, 585
F.3d at 916 n.3 (holding that failure to prove objective unreasonableness to avoid qualified
immunity under 42 U.S.C. § 1983 also defeated claim for qualified immunity under Ohio law);
see Pollard, 780 F.3d at 404 (“If the officers were objectively reasonable in shooting Bynum, it
logically follows that they could not have been reckless in shooting Bynum”); Mullins, 805 F.3d
at 769 (“Because we find that [the officer’s] use of deadly force was not objectively
unreasonable under the circumstances, it follows that he did not act with ‘malicious purpose, in
bad faith, or in a wanton or reckless manner,’ as required to avoid statutory immunity under Ohio
law.”) (quoting Ohio Rev. Code § 2744.03(A)(6)(b)).
Plaintiff’s Motion for Summary Judgment
Plaintiff also seeks summary judgment on the issue of the availability of qualified
immunity. Her motion is built on a dubious foundation of incompetent evidence and
mischaracterizations of the competent record before the Court. For example, plaintiff framed her
request for summary judgment around representations that Ryan went to the salon “in hopes of
seeing his girlfriend” and “made a disturbance when he learned [she] was not there.” Plaintiff
further claimed that the police arrived, “treat[ing] the event” as a hostage situation, causing Ryan
to “fle[e] into” the back room “accompanied” by one of the employees. Saler then entered the
room and, after seeing “no weapons in Ryan’s hands,” and after seeing the “employee . . .
hurried . . . out of the room,” shot him twice. (Plaintiff MSJ at 1023-24) (capitalization omitted).
She concludes that because Saler “had never seen Ryan holding or touching a weapon” he “knew
that Ryan could not reach out to harm anyone.” (Id. at 1030-31) (capitalization omitted).
These characterizations constitute gross misrepresentations of the record before the
Court, the most egregious of these being the representation that Ryan was unarmed and a danger
to no one when he was shot by police. Instead, the undisputed record demonstrates that Ryan was
holding a lighter and, instead of giving up, he attempted to ignite it when the members of the
Canton Regional SWAT entered the room.15 When coupled with the threats that Ryan had
previously made (and conveniently omitted from plaintiff’s summary judgment motion)—that
Plaintiff simply cannot have it both ways. While she insists that Ryan was “unarmed,” she also argues that
defendant’s erred by giving a “suicidal man” a “deadly weapon.” (Canton MSJ Opp’n at 1437; see also id. (“Captain
Covert agreed with McConnell that officers have no discretion to arm the suicidal.”) The record clearly establishes
that Ryan turned the cigarette lighter into a deadly weapon when he indicated that he was prepared to use it to cause
harm to himself, the hostage, and the officers.
the officers would have to kill him and that he would kill the hostage and blow up the building—
it is clear that the danger faced by the responding officers was very real. No amount of
massaging the facts can escape this conclusion.
Plaintiff concedes, as she must, that the use of deadly force is reasonable, and
constitutional, if “the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or others.” (Id. at 1028 (quoting Chappell, 585 F.3d at
908).) Yet, the undisputed facts demonstrate that the risk to the hostage and the officers at the
scene was significant, and the officers had only seconds to respond. Given the evolving nature of
this dangerous situation, plaintiff cannot establish that no reasonable fact-finder, viewing the
facts in the light most favorable to defendants, would find that defendants’ actions were
Plaintiff also relies extensively on the transcribed interview of Officer Brown, and, in
particular, Brown’s representation that the hostage was in the process of being rescued from the
utility room when Saler shot Ryan. (Id. at 1025.) The Court has already set forth in detail why
this unsworn statement may not be considered on summary judgment. The Court has also
discussed, in depth, the limitations of this evidence, and how it fails to demonstrate that the risk
of injury or death to the hostage and the officers from a gas explosion had dissipated.
Accordingly, plaintiff is not entitled to summary judgment.
The shooting death of Shane Ryan was a tragedy. Yet, not all tragic events are the result
of constitutional violations. The undisputed record compels the Court to conclude that, tragic as
it was, the death of Ryan was not the result of a violation of his constitutional rights. Such a
finding entitles the individual defendants to qualified immunity, and prevents plaintiff from
continuing to prosecute the claims in her complaint.
Accordingly, and for all of the foregoing reasons, plaintiff’s motion for summary
judgment is denied, and defendants’ summary judgment motions are granted. This case is
IT IS SO ORDERED.
Dated: December 30, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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