Wilkerson v. City of Akron, et al

Filing 40

Order granting in part and denying in part Defendants' Motion for summary judgment (Related Doc # 22 ). See order for specific resolution of each claim in the complaint. Judge John R. Adams on 9/21/17.(L,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHERRY WILKERSON, Administrator of )
The Estate of Raupheal Thomas,
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Plaintiff,
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v.
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CITY OF AKRON, OHIO, et al.
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Defendant.
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CASE NO. 5:15CV2266
JUDGE JOHN R. ADAMS

MEMORANDUM OF OPINION

This matter comes before the Court on a motion for summary judgment filed by Defendants
City of Akron, Ohio, James Nice, Joseph Danzy, and Edward Stewart (“Defendants”). For the
reasons that follow, Defendants’ motion is GRANTED in part and DENIED in part.
I. Facts & Procedure
Slightly after 5 p.m. on November 3, 2014, Raupheal Thomas and Jesse Gray were riding
in Tina Holman’s vehicle. Holman’s vehicle suffered a flat tire on Orlando Avenue near Orrin
Street. Thomas and Gray waited on the sidewalk on Orlando Avenue while Ms. Holman drove the
vehicle to a nearby gas station. At approximately 5:16 p.m., off-duty Akron Police Officer Howard
Vaughn called Akron Police and requested a unit to respond to Thomas and Gray stating, “I don’t

know if they’re casing or what.” At the time of the call, Vaughn was in the neighborhood where
he lived and was aware of several recent break-ins that had occurred nearby. Akron Police Officer
Joseph Danzy responded to the call followed shortly later by Officer Edward Stewart.
Dash camera footage captured a large portion of the interaction between Thomas and Gray
and the officers. Within seconds of Officer Danzy speaking to Thomas, Thomas turned and began
to move toward the sidewalk. Plaintiff Sherry Wilkerson, representing Thomas’ estate, contends
that Thomas’ movements at the time were innocent and casual, however Defendants contend that
Thomas’ movements were abrupt and constituted Thomas taking a “bladed stance.” Officer Danzy
summoned Thomas back to the cruiser, ordered him take his hands out of his pockets, and ordered
him to place his hands on the cruiser. Officer Danzy then initiated a pat-down. Officer Stewart
assisted in placing Thomas’ left wrist on the cruiser. Once Officer Danzy and Officer Stewart were
holding Thomas, Thomas began to struggle. Officer Danzy attempted to utilize his Taser to no
effect and Thomas, Officer Danzy, and Officer Stewart ended up fighting on the grass between the
road and the sidewalk. While the exact nature of the fight is disputed, it is undisputed that at some
point during the fight Thomas drew a .25 caliber handgun and fired.
Thomas managed to break free of Officer Danzy and Officer Stewart and ran back into the
view of the dash camera. Thomas ran across the view of the camera, followed by Officer Danzy,
who fired two rounds from his service weapon. One round entered Thomas’ right rear flank and
the other passed through his liver, diaphragm, pericardial sac, and the right atrium of the heart.
Thomas then collapsed to the ground next to his gun.
Officer Danzy and Officer Stewart then cuffed Thomas behind his back and Officer Danzy
called for an ambulance. Officer Stewart requested that the ambulance “step it up.” Neither officer
provided further medical aid. EMS reported “[d]elay on the scene; parking down the street from

victim” and “delay trying to remove handcuffs from patient.” Plaintiff contends that EMS parked
down the street from the victim because of responding officers attempting to secure the scene.
Deposition testimony provided by both sides stated that the handcuff delay arose from mechanical
issues regarding the handcuff key interfacing with the handcuffs. Thomas died at 5:55 p.m.
On November 3, 2015, Plaintiff filed this action in this court. Plaintiff asserted claims under
42 U.S.C. § 1983 for unconstitutional search and seizure, excessive force, and unconstitutional
deprivation of serious medical needs under the Fourth and/or Fourteenth Amendments. Plaintiff
also asserted § 1983 claims against the City of Akron and James Nice as Chief of the City of Akron
Division of Police for failure to train and/or supervise law enforcement, for promulgating customs,
policies, and/or practices which proximately caused the violation of Thomas’ rights, and for
ratifying the conduct of Officer Danzy and Officer Stewart. Plaintiff also raised claims of assault
and battery, intentional infliction of emotional distress, and wrongful death under Ohio law.

II. Legal Standard
Summary judgment is appropriate only when there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The moving party must demonstrate
to the court through reference to pleadings and discovery responses the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. at 323. This is so that summary judgment can
be used to dispose of claims and defenses which are factually unsupported. Id. at 324. The burden
on the nonmoving party is to show, through the use of evidentiary materials, the existence of a
material fact which must be tried. Id. The court’s inquiry at the summary judgment stage is “the
threshold inquiry of determining whether there is the need for a trial - whether, in other words,

there are any genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477
U.S. at 250.
The court’s treatment of facts and inferences in a light favorable to the nonmoving party
does not relieve that party of its obligation “to go beyond the pleadings” to oppose an otherwise
properly supported motion for summary judgment under Rule 56(e). See Celotex Corp. v. Catrett,
477 U.S. at 324. The nonmoving party must oppose a proper summary judgment motion “by any
kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves ...” Id.
Rule 56(c) states, “... [t]he judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that the moving party is entitled to a
judgment as a matter of law.” A scintilla of evidence in favor of the nonmoving party is not
sufficient.
III. Law and Analysis
Stop and Frisk
Wilkerson raises her first claim related to the stop and frisk under 42 U.S.C. § 1983,
alleging a constitutional violation of Thomas’ Fourth Amendment rights. To state a claim under §
1983, a plaintiff must set “forth facts that, when construed favorably, establish (1) the deprivation
of a right secured by the Constitution or laws of the United States (2) caused by a person acting
under the color of state law.” Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013) (internal citation
omitted). Neither party disputes that the Akron officers acted under color of state law. Rather, this
motions challenges whether Thomas’ rights were indeed violated and if so whether the officers are
entitled to qualified immunity. Qualified immunity is appropriate when an official’s conduct “does

not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)
(internal citation omitted). The qualified immunity analysis contains two components, which
courts may analyze in any order: (1) whether the plaintiff has established with the requisite proof
the violation of a constitutional right, and (2) whether the particularized right at issue was “clearly
established” at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232- 236
(2009). When a defendant invokes qualified immunity in a motion for summary judgment, the
plaintiff must offer sufficient evidence to create a genuine dispute of fact that the defendant
violated a clearly established right. DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 608–09 (6th Cir.
2015).
The Fourth Amendment states: “The right of the people to be secure in their persons...
against unreasonable searches and seizures, shall not be violated...” U.S. Const. amend. IV. The
Sixth Circuit has provided “a two-part analysis of the reasonableness of the stop ... We first ask
whether there was a proper basis for the stop and, if the stop was proper, then we must determine
whether the degree of intrusion ... was reasonably related in scope to the situation at hand.” United
States v. Mays, 643 F.3d 537, 541–42 (6th Cir. 2011) (quoting United States v. Smith, 594 F.3d
530, 536 (6th Cir.2010)) (internal quotations omitted). The Supreme Court has discussed the law
surrounding stop and frisks on numerous occasions.
The Fourth Amendment prohibits “unreasonable searches and seizures” by the
Government, and its protections extend to brief investigatory stops of persons or
vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9 (1968);
United States v. Cortez, 449 U.S. 411, 417 (1981). Because the “balance between
the public interest and the individual’s right to personal security,” United States v.
Brignoni–Ponce, 422 U.S. 873, 878 (1975), tilts in favor of a standard less than
probable cause in such cases, the Fourth Amendment is satisfied if the officer’s
action is supported by reasonable suspicion to believe that criminal activity “‘may
be afoot,’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, supra, at
30). See also Cortez, 449 U.S., at 417 (“An investigatory stop must be justified by

some objective manifestation that the person stopped is, or is about to be, engaged
in criminal activity.”).
When discussing how reviewing courts should make reasonable-suspicion
determinations, we have said repeatedly that they must look at the “totality of the
circumstances” of each case to see whether the detaining officer has a
“particularized and objective basis” for suspecting legal wrongdoing. See, e.g., id.,
at 417–418. This process allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that “might well elude an untrained person.” Id., at
418. See also Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court
must give “due weight” to factual inferences drawn by resident judges and local
law enforcement officers). Although an officer’s reliance on a mere “‘hunch’” is
insufficient to justify a stop, Terry, supra, at 27, the likelihood of criminal activity
need not rise to the level required for probable cause, and it falls considerably short
of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7.
United States v. Arvizu, 534 U.S. 266, 273–74 (2002).
Both parties agree that the interaction between Officer Danzy and Thomas was a
consensual encounter until the moment Officer Danzy summoned Thomas to the cruiser and
ordered him to take his hands out of his pockets. At this point, the interaction became a
nonconsensual stop and subject to Fourth Amendment scrutiny. Officer Danzy points to a “bladed
stance” and “abrupt” movement towards the sidewalk as justification for his orders. One court has
described “blading” as “pivoting so that [the subject’s] body [is] perpendicular to [the officer’s], a
maneuver …recognized as one that officers are taught as a way to protect their sidearms from
assailants.” United States v. Johnson, 336 Fed.Appx. 554, 555 (6th Cir. 2009).
While giving due weight to Officer Danzy’s observations, the Court cannot conclude that
his factual assertions regarding “blading” are conclusive on the issue as to warrant summary
judgment. The Court has carefully scrutinized the dash camera footage that allegedly demonstrates
Thomas’ nervous behavior and the “blading.” The totality of these actions allegedly occur within
a span of roughly 10 seconds. During that time, Thomas and Gray both point toward a gas station
and reference a flat tire. That information was entirely consistent with Officer Vaughn’s prior

observation that the SUV that Thomas and Gray were riding in had a flat tire. The totality of the
remainder of Thomas’ interaction prior to his seizure involves Thomas’ having his hands in his
pockets and turning to walk away from Officer Danzy. While Officer Danzy construed this
movement at Thomas “blading” his body, the dash camera footage does not show Thomas turning
his body perpendicular to Officer Danzy to conceal one side. Instead, Thomas turns completely
away from the officer and begins to walk away.
Reviewing the totality of the circumstances, the Court cannot conclude that as a matter of
law Officer Danzy had reasonable suspicion for his stop and frisk. Even allowing for the use of
the collective knowledge doctrine and assuming that Officer Danzy had the same knowledge as
Vaughn, Defendants cannot demonstrate reasonable suspicion that warrants summary judgment.
While Vaughn notes that there were several recent break-ins in the neighborhood, there is nothing
to suggest that it is a high-crime neighborhood. Moreover, Vaughn directly observed the flat tire
on the SUV, providing an entirely legitimate reason for Thomas and Gray to be waiting in the
neighborhood. Upon Officer Danzy’s arrival, Thomas and Gray both indicated that car trouble
had left them in the neighborhood. These underlying facts, coupled with Thomas’ actions in
having his hands in his pockets and attempting to walk away from the officers, are insufficient for
this Court to say as a matter of law that reasonable suspicion existed to justify Thomas’ stop and
frisk by Officer Danzy.
Qualified immunity, however, protects Officer Danzy from this lawsuit unless Wilkerson
can demonstrate that Officer Danzy violated Thomas’ constitutional rights and that those rights
were clearly established. Pearson v. Callahan, 555 U.S. 223, 321 (2009). This Court “may not
call off the trial merely because an officer says he or she acted reasonably in the face of competing
testimony. We instead consider the facts in the light most favorable to the plaintiff.” Greco v.

Livingston Cnty., 774 F.3d 1061, 1064 (6th Cir. 2014). As noted above, there remain competing
facts in the record that preclude summary judgment on the issue of whether Thomas’ constitutional
rights were violated.

Assuming those rights were violated, the Court finds that the rights were

clearly established. Unsuspicious pedestrians remain free “to ignore the police and go about [their]
business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). And “refusal to cooperate, without more,
does not furnish the minimal level of objective justification needed for a detention or seizure.”
Florida v. Bostick, 501 U.S. 429, 437 (1991). All of this establishes that “walking away from an
officer does not create ... reasonable suspicion.” United States v. Beauchamp, 659 F.3d 560, 570
(6th Cir. 2011); see Brown v. Texas, 443 U.S. 47, 52 (1979). Upon review, a reasonable juror
could conclude that Thomas did nothing more than walk away from Officer Danzy- a reasonable
factual conclusion that stands in direct conflict with Officer Danzy’s account of events. As the
record allows for this conclusion, Officer Danzy is not entitled to qualified immunity
Officer Danzy’s Use of Force
Regardless of whether the Terry stop was constitutional, Officer Danzy’s use of lethal force
must be viewed separately from the circumstances leading to the use of force. Cty. of Los Angeles,
Calif. v. Mendez, 137 S.Ct 1539, 1547 (2017) (“To the extent that a plaintiff has other Fourth
Amendment claims, they should be analyzed separately.”). This Court finds that all rational
factfinders would hold that Officer Danzy’s use of force was constitutional.
“Where the officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent
escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is
probable cause to believe that he has committed a crime involving the infliction or threatened
infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and

if, where feasible, some warning has been given.” Tennessee v. Garner, 471 U.S. 1, 11–12, (1985).
“This Circuit has employed a non-exhaustive list of three factors to evaluate whether an officer’s
actions are reasonable: ‘(1) the severity of the crime at issue; (2) whether the suspect poses an
immediate threat to the safety of the officers or others; and (3) whether the suspect is actively
resisting arrest or attempting to evade arrest by flight.’ Mullins v. Cyranek, 805 F.3d 760, 765 (6th
Cir. 2015) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 534 (6th Cir. 2006)). But the
ultimate inquiry is always whether the totality of the circumstances justified the use of force.”
Littlejohn v. Myers, 684 F. App’x 563, 567 (6th Cir. 2017). With respect to deadly force, the Sixth
Circuit has further explained:
With that said, this Court has explicitly stated—regardless of the other factors—
that with respect to the use of deadly force, there is a minimum requirement that
the officer have “probable cause to believe that the suspect poses a threat of severe
physical harm, either to the officer or others.” Untalan v. City of Lorain, 430 F.3d
312, 314 (6th Cir. 2005). Our analysis turns on whether Myers had probable cause
to believe that Littlejohn presented a serious danger to either himself or others at
the moment Myers discharged his firearm. See Bouggess v. Mattingly, 482 F.3d
886, 890 (6th Cir. 2007) (the relevant time for purposes of this inquiry “is the
moment immediately preceding the shooting”). As a general note, the mere fact that
Littlejohn was a felon fleeing from police is not sufficient to justify the use of
deadly force. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985) (“It is not better that all felony suspects die than that they escape. Where the
suspect poses no immediate threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify the use of deadly force to
do so.”). On the other hand, if a suspect threatens either an officer or any other
person with serious physical harm during flight, deadly force is authorized.
Dickerson, 101 F.3d at 1163.
Id.
While there exists a question of fact regarding exactly how Thomas’ firearm was oriented
when fired, the record establishes the following undisputed facts 1) Thomas possessed a .25 caliber
handgun; 2) Officer Danzy, Officer Stewart, and Thomas were involved in a physical altercation;

3) Thomas discharged his handgun while fighting with Officer Danzy and Officer Stewart; 4) and
Thomas retained his handgun until he was shot by Officer Danzy.
The above facts compel a finding that deadly force was reasonable. Wilkerson attempts to
manufacture a factual dispute to avoid summary judgment. Specifically, Wilkerson claims that
Officer Danzy and Officer Stewart gave different accounts of the gunshot. Officer Danzy opined
that the shot went into the air while he fought Thomas for the firearm. Officer Stewart believed
the gunshot was muffled and had come from beneath Thomas. The Court would first note that the
officers had different vantage points during the altercation with Thomas. As such, there differing
accounts do not necessarily contradict one another. However, even assuming that they create a
factual contradiction, the contradiction is not on an issue of material fact. 1 Regardless of which
version of events is believed by a jury, the jury must conclude that Thomas discharged his firearm
while fighting two officers. As such, deadly force was warranted. See, supra, Dickerson, 101
F.3d at 1163.
Claims Against Officer Stewart for Terry Stop and Frisk and Use of Force
Officer Stewart did not conduct the Terry stop, did not initiate the frisk, and did not utilize
the lethal force that Plaintiff references in the complaint. Summary judgment is GRANTED as to
these claims.
Deliberate Indifference to Medical Needs
“In a deliberate-indifference claim based on delay of medical care, a constitutional
violation arises if the injury in question is ‘so obvious that even a layperson would easily recognize
the necessity for a doctor's attention,’ and the resulting need for treatment was ‘not addressed
within a reasonable time frame.’” Scozzari v. Miedzianowski, 454 F. App'x 455, 464 (6th Cir.

1

Similarly, the fact that Officer Stewart did not perceive the same level of danger as Officer Danzy has no impact
on the Court’s review of the facts and the law applicable to the use of deadly force

2012) (internal citations omitted). “Deliberate indifference requires that an officer (1) be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, (2)
draw the inference, and (3) act or fail to act in a manner demonstrating ‘reckless or callous
indifference’ toward the individual’s rights.” Jones v. City of Cincinnati, 736 F.3d 688, 696 (6th
Cir. 2012) (internal quotations omitted). Neither Officer Danzy nor Officer Stewart acted with
deliberate indifference to Thomas’ medical needs.
It is undisputed that Officer Danzy and Officer Stewart were aware that Thomas had been
shot and were aware of the risk of serious harm that could follow not providing medical aid. Officer
Danzy called for an ambulance and Officer Stewart requested that the ambulance “pick it up.”
These acts show that Officer Danzy and Officer Stewart were aware of a risk of serious harm and
drew an inference between the facts of the situation and the risk.
Legally, neither Officer Danzy nor Officer Stewart acted or failed to act in a manner
demonstrating reckless or callous indifference. The Sixth Circuit has also held “that the obligation
to provide adequate medical care to an injured detainee is not discharged merely by promptly
calling for assistance, but extends to ensuring that medical responders are able to access the victim
without unreasonable delay.” Scozzari v. Miedzianowski, 454 F. App'x 455, 466 (6th Cir. 2012).
Officer Danzy promptly summoned medical help and Officer Stewart attempted to speed up
medical response. Uncontroverted evidence from Officer Stewart’s deposition and the EMS report
both state that there was difficulty in removing the handcuffs and delay from parking down the
street. However, neither Officer Danzy nor Officer Stewart refused to remove Thomas’ handcuffs.
No rational factfinder would be able to find that mechanical difficulty in removing handcuffs was
an act demonstrating reckless or callous indifference. No rational factfinder would be able to find
that either Officer Danzy or Officer Stewart were responsible for the manner in which other

responding officers parked their vehicles upon arriving at the scene. As such, the record contains
undisputed evidence that neither officer took any step to delay the medical responders.
Accordingly, Wilkerson’s deliberate indifference claim cannot survive.
Monell Claims
Failure to Train and Supervise and for Customs, Policies, and Practices Causing Violations of the
Fourth and/or Fourteenth Amendment
Plaintiff claims that Akron police policy and procedures make Akron and Chief Nice liable
for and led to the unconstitutional use of deadly force by Officer Danzy and the unconstitutional
deprivation of medical rights by deliberate indifference on the part of Officer Danzy and Officer
Stewart. “‘[I]t is when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under § 1983.’” Garner v. Memphis
Police Dep’t. 8 F.3d 358, 363 (6th Cir. 1993) (quoting Monell, 436 U.S. at 694). Having found
no constitutional violation with respect to the excessive force claim and the deliberate indifference
claim, Monell claims premised on these violations cannot survive summary judgment.
State Law Claims
Wilkerson’s state law claims of assault and battery and intentional infliction of emotional
distress are resolved in the same manner as her federal claims. To the extent that the stop and frisk
claim survives, Wilkerson’s assault and battery claim survives. However, such a claim is limited
to the stop and frisk only. The intentional infliction of emotional distress claim fails as a matter
of law as the only remaining claim, the stop and frisk claim, is legally insufficient to support such
a claim.

IV. Conclusion
Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN
PART as detailed herein. Wilkerson’s claims tied directly to Danzy’s stop and frisk of Thomas
survive summary judgment. Judgment is entered in favor of Defendants on all other claims in the
complaint.
IT IS SO ORDERED.

Date: September 21, 2017

_/s/ John R Adams_______
JOHN R. ADAMS
U.S. DISTRICT JUDGE