James v. Tunnell et al
Filing
64
OPINION AND ORDER granting 43 Defendant Daron Rhoads' Motion for Summary Judgment; granting 53 Defendant James Tunnell's Motion for Summary Judgment. Signed by Judge S Arthur Spiegel on 8/4/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ROBERT N. JAMES,
:
:
:
:
:
:
:
:
:
:
:
:
:
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Plaintiff,
v.
OHIO DNR OFFICER JAMES
TUNNELL, et al.,
Defendants.
NO. 1:09-CV-00839
OPINION AND ORDER
This matter is before the Court on Defendant Daron
Rhoads’ Motion for Summary Judgment (doc. 43); Defendant James
Tunnell’s
Motion
for
Summary
Judgment
(doc.
53);
Plaintiff’s
Memoranda in Opposition (docs. 51, 59, respectively); and each
Defendant’s Reply (docs. 52, 63).
For the reasons stated herein,
the Court GRANTS Defendant Rhoads’ Motion for Summary Judgment
(doc. 43), and GRANTS Defendant Tunnell’s Motion for Summary
Judgment (doc. 53).
I.
Background
The
following
facts
come
from
Defendants’
Motions,
Plaintiff’s Responses, and the relevant exhibits, including the
“entry
and
exit”
video
recorded
by
Defendant
James
Tunnell
(“Tunnell”) and other officers, each of which the Court closely
reviewed in its entirety.
Defendant Daron Rhoads (“Rhoads”), a deputy for the
Butler County Sheriff’s Office, was on road patrol near Okeana,
Ohio, when Plaintiff Robert James’ (“James”) truck passed on
November 13, 2007 (doc. 43).
The Butler County Sheriff’s Office
had received prior complaints that James kept guns in his vehicles
and was also involved in illegal poaching activities (Id.).
Accordingly, Rhoads followed the truck and, at approximately 6:05
P.M., executed a traffic stop during which he cited James for a
left of center traffic violation (Id.).
Rhoads called for back-up
after his initial approach of the drivers’ side of the truck for
two reasons: James’ truck had particularly high tires and tinted
windows that made it hard to see into the truck, and James did not
fully roll his window down when providing Rhoads with his licence
and registration (Id.).
After back-up arrived, Rhoads approached the drivers’
side of James’ truck again (Id.).
At this time, James admitted
that he had two loaded rifles in the front seat and claimed that
one of them was jammed (Id.).
Rhoads asked James to exit the
vehicle, and James cooperated (Id.). Rhoads cleared the weapons of
ammunition
and
secured
the
guns
for
safety
reasons
(Id.).
Subsequently, Rhoads placed James under arrest for the improper
handling of firearms in a vehicle (Id.).
At 6:20 P.M., after
Rhoads found and secured the guns, Rhoads handcuffed James by
placing James’ wrists behind his back and placing James in the rear
-2-
seat of the cruiser (Id.).
James did not complain when Rhoads
initially handcuffed him (Id.).
Rhoads proceeded to ask dispatch to contact the Ohio
Department of Natural Resources (“ODNR”) because Rhoads knew about
the previous complaints the ODNR had received regarding James’
potential involvement in poaching (Id.).
Subsequently, an ODNR
supervisor called ODNR Officer Tunnell to respond to Rhoads’
dispatch call in order to investigate James’ possible wildlife law
violations (doc. 53).
James was seated in the back of Rhoads’
cruiser when Tunnell arrived around 8:30 P.M. (doc. 43).
Tunnell
asked Rhoads to remain with James at the scene of the traffic stop
while ODNR investigated (Id.).
The ODNR officers conducted their roadside investigation
interviewing James and reviewing evidence obtained from James’
vehicle (doc. 53). Tunnell and other ODNR officers searched James’
vehicle and found gloves that contained deer hair and deer hair in
the truck bed in addition to the loaded weapons which Rhoads
previously discovered (Id.).
Rhoads did not transport James to
Butler County Jail until the ODNR investigators completed their
investigation and released the scene to Rhoads, which took place
around 11:00 P.M. (doc. 43).
James alleges that his arms started tingling and his
hands became numb around 8:00 P.M., but admits that he had not made
any complaints before this time about the handcuffs (Id.).
-3-
James
contends that around 8:00 P.M. he asked Rhoads to loosen his
handcuffs five or six times before Rhoads removed James from the
cruiser, removed the handcuffs, and repositioned the handcuffs in
front of James for comfort (Id.).
Later, Rhoads replaced the
handcuffs behind James’ back for transportation to jail (Id.).
James made no further complaints to Rhoads about the handcuffs
(Id.).
Around 11:00 P.M., Butler County Jail personnel took
custody of James from Rhoads, booked James into the jail, and
removed the handcuffs (Id.).
At that time, James was no longer in
Rhoads’ custody, and Rhoads left (Id.).
James did not request medical attention, complain of any
injury, or show his wrists to anyone at the jail during his time
there
(Id.).
James
refused
to
answer
questions
personnel asked him regarding any injuries (Id.).
which
jail
Moreover, the
booking report which James signed did not include indications of
injuries to James’ wrists, shoulder, or back or a request by James
for medical attention (Id.).
After James’ release from jail, he did not seek medical
treatment for his wrists (Id.).
However, James believed that he
suffered shoulder and upper back pain from the handcuffing (Id.).
However, he did not make any complaints to jail personnel about any
shoulder or back pain (Id.).
His first treatment for any shoulder
or back pain was two months after the traffic stop, at the end of
January 2008 (Id.).
During
his treatment in 2008, James did not
-4-
tell his doctor or chiropractors about the handcuffing, and no
medical doctor or chiropractor told James that any shoulder or back
pain was related to the handcuffing (Id.)
After the ODNR roadside investigation took place, Tunnell
requested James’ consent to search James’ house for untagged deer
parts, but James refused (doc. 53). Consequently, Tunnell obtained
a search warrant to search James’ residence (Id.).
The warrant
provided for the search and seizure of, inter alia, fired rifle
bullets, untagged or fraudulently tagged deer or deer parts,
hunting related photographs, including CDs and DVDs, and hunting
related videos (Id.).
Tunnell, other ODNR officers, and Butler
County Sheriff Deputies proceeded to execute the warrant early on
the morning of November 14, 2007 (Id.).
Tunnell filmed an “entry video” depicting the conditions
inside the residence when the officers entered (Id.).
Tunnell
observed a large number of deer, other game mounts, and animal
parts located in multiple areas throughout James’ house during the
officers’ initial search (Id.). Tunnel noted that some of the deer
and turkey parts were legally tagged while other parts were not
(Id.). Tunnell further observed that when the officers entered the
residence, some of the mounts had decorations, such as Christmas
lights, a hat, and goggles (Id).
Eventually, the officers located
and filmed their inspection of several gun safes (Id.).
During the search of James’ gun safes, the officers
-5-
removed what at the time appeared to be a .30 caliber machine gun
from a safe, but failed to replace the weapon back in the safe
(Id.).
However, Tunnell recalls that the officers attempted to
place the safes’ contents back into their original positions (Id.).
Furthermore, Tunnell and other officers identified and inventoried
a large number of animal mounts and parts that were taken as
evidence and logged in the warrant inventory (Id.).
Tunnell did
not examine any of James’ videos but asked the other officers to do
so
(Id.).
The
officers
completed
the
documentation
of
the
inventory of evidence and ODNR Officer Ireland conducted an “exit
video” of the residence as the officers completed their search
(Id.).
Upon Tunnell’s exit of the residence, he affixed a copy of
the warrant paperwork to the pull chain of a light above a table in
the kitchen area to ensure that James could easily find the
paperwork when he arrived home (Id.).
James pleaded guilty to a reduced misdemeanor offense
regarding the rifles he transported in his truck and was fined and
sentenced to 30-days probation (Id.). With respect to the deer tag
investigation, Tunnell filed deer-tag charges, which were dismissed
because James ultimately provided the state with relevant tags
(Id.).
II.
Procedural Posture
After
the
Court
granted
Rhoads’
Motion
for
Partial
Judgment on the Pleadings, (doc. 27), James has only one remaining
-6-
claim against Rhoads: a claim for excessive use of force allegedly
in violation of 42 U.S.C. § 1983 and the Fourth and Fourteenth
Amendments (doc. 43).
Likewise, after the Court partially granted
Tunnell’s
Dismiss,
Motion
to
(doc.
27),
James
has
only
one
remaining claim against Tunnell: a claim for an unreasonable search
and seizure that violated James’ constitutional rights (doc. 53).
Both Rhoads and Tunnell have filed Motions for Summary Judgment
(docs. 43, 53 respectively), which are ripe for the Court’s
consideration.
III.
Legal Standard
Although a grant of summary judgment is not a substitute
for trial, it is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law."
Fed. R. Civ. P. 56; see also, e.g.,
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992)(per
curiam).
In reviewing the instant motion, "this Court must
determine whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Patton v. Bearden, 8
-7-
F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986)(internal quotation marks
omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.
First, "a party
seeking summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of
material fact[.]"
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,
980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).
The movant may do so by
merely identifying that the non-moving party lacks evidence to
support an essential element of its case. See Barnhart v. Pickrel,
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced
with
such
a
motion,
the
non-movant,
after
completion of sufficient discovery, must submit evidence in support
of any material element of a claim or defense at issue in the
motion on which it would bear the burden of proof at trial, even if
the moving party has not submitted evidence to negate the existence
of that material fact. See Celotex, 477 U.S. 317; Anderson v.
-8-
Liberty Lobby, Inc., 477 U.S. 242 (1986).
As the “requirement [of
the Rule] is that there be no genuine issue of material fact,” an
“alleged factual dispute between the parties” as to some ancillary
matter “will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-48 (emphasis added);
see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d
1304,
1310
(6th
Cir.
1989).
Furthermore,
"[t]he
mere
existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant]."
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,
784 (6th Cir. 1994).
Accordingly, the non-movant must present
"significant probative evidence" demonstrating that "there is [more
than] some metaphysical doubt as to the material facts” to survive
summary judgment and proceed to trial on the merits. Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993); see
also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, "the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts
upon which the non-moving party relies." Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989)(internal quotation marks omitted).
-9-
In contrast, mere
conclusory allegations are patently insufficient to defeat a motion
for summary judgment.
See McDonald v. Union Camp Corp., 898 F .2d
1155, 1162 (6th Cir. 1990).
evidence,
facts,
and
The Court must view all submitted
reasonable
inferences
in
a
light
most
favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,
369 U.S. 654 (1962). Furthermore, the district court may not weigh
evidence or assess the credibility of witnesses in deciding the
motion.
See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating
that no material facts are in dispute. See Matsushita, 475 U.S. at
587.
The fact that the non-moving party fails to respond to the
motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate. See
Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-55
(6th Cir. 1991).
IV.
Discussion
A.
Defendant Rhoads’ Motion for Summary Judgment
James brings this action pursuant to 42 U.S.C. § 1983,
alleging that Rhoads’ actions violated James’ Fourth and Fourteenth
Amendment rights to be free of excessive force regarding Rhoads’
use of handcuffs on James on November 13, 2007 (doc. 43).
Summary
Judgment is appropriate at this time because qualified immunity
-10-
shields Rhoads.
Qualified
immunity
shields
government
officials
performing discretionary functions from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified
immunity
serves
to
permit
the
resolution
of
many
insubstantial claims at the summary judgment stage, in order to
avoid excessive disruption of government. Id.
Moreover, qualified
immunity is not merely a defense against liability to be asserted
during litigation, but rather offers an entitlement not to stand
trial or face other burdens of litigation. Mitchell v. Forsyth, 472
U.S. 511, 526 (1985).
A defendant enjoys qualified immunity on summary judgment
unless the facts alleged and the evidence produced, when viewed in
the
light
most
favorable
to
the
plaintiff,
would
permit
a
reasonable juror to find that: (1) the defendant violated a
constitutional right; and (2) the right was clearly established.
Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)
(citing
Saucier
v.
Katz,
533
U.S.
194,
201
(2001)).
A
constitutional right is “clearly established” if “[t]he contours of
the right [are] sufficiently clear that a reasonable official would
understand what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635 (1987).
Thus, the relevant dispositive
-11-
inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted. Saucier, 533 U.S. at
202; Morrison v. Bd. of Trustees, Green Township, 583 F.3d 394, 401
(6th Cir. 2009).
1.
Fourteenth Amendment Claim
As noted above, James brings this claim pursuant to 42
U.S.C. § 1983 alleging that Rhoads violated James’ constitutional
right to be free from excessive force.
In cases where the
plaintiff alleges that law enforcement officials used excessive
force during an arrest, the claim is analyzed under the Fourth
Amendment’s reasonableness standard rather than general due process
protections under the Fourteenth Amendment. Graham v. Connor, 490
U.S. 386, 396-97 (1989); Kostrzewa v. City of Troy, 247 F.3d 633,
639 (6th Cir. 2001).
Accordingly, James’ claims are appropriately
analyzed under a Fourth Amendment, not a Fourteenth Amendment,
rubric.
2.
Fourth Amendment Claim
James fails to establish that Rhoads violated James’
Fourth Amendment right to be free from excessive force.
Fourth
Amendment,
individuals
have
a
right
to
be
Under the
free
from
excessive or unreasonable force when police make an arrest or
seizure.
Graham, 490 U.S. at 394-95.
One such Fourth Amendment
right is the right to be free of unduly tight or excessively
-12-
forceful handcuffing during the course of a seizure. Morrison, 583
F.3d 401; Kostrzewa, 247 F.3d at 639.
Using
an "objective
reasonableness" standard, the inquiry becomes whether an officer
has exerted excessive force during the course of a seizure.
Kostrzewa,
247
“balanc[ing]
F.3d
the
at
639.
consequences
Such
to
a
the
determination
individual
entails
against
the
government’s interests in effecting the seizure.” Burchett v.
Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citing Graham, 490 U.S.
at 396).
A court should judge the lawfulness of the conduct from
the "perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight." Kostrzewa, 247 F.3d at 639
(quoting Graham, 490 U.S. at 396).
Although the Fourth Amendment prohibits unduly tight
handcuffing
in
the
course
of
an
arrest,
the
Sixth
Circuit
recognizes that not all allegations of tight handcuffing amount to
excessive force.
2005).
Lyons v. Xenia, 417 F.3d 565, 575 (6th Cir.
Instead, in order for a handcuffing claim to survive
summary judgment, the plaintiff must offer sufficient evidence to
create a genuine issue of material fact that: (1) he complained the
handcuffs were too tight; (2) the officers ignored the plaintiff’s
complaints that the handcuffs were too tight; and (3) the plaintiff
experienced some physical injury resulting from the handcuffing.
Miller
v.
Sanilac
County,
606
F.3d
240,
2010)(citing Lyons, 417 F. 3d at 575-76).
-13-
252
n.8
(6th
Cir.
An immediate loosening of the handcuffs by a deputy is
not constitutionally required.
Miller, 606 F.3d 240, 252 n.8 (6th
Cir. 2010)(ruling a non-immediate response by an officer to loosen
plaintiff’s handcuffs was not an automatic constitutional violation
of plaintiff’s rights). In Miller, the Sixth Circuit ruled that it
can hardly be construed to mean that any longer response, to a
plaintiff’s request for a loosening of his or her handcuffs, than
an immediate response, is an automatic constitutional violation.
Id. In fact, Sixth Circuit precedents fail to notify officers that
any response to a complaint of tight handcuffing other than an
immediate
response
constitutes
excessive
force.
Fettes
v.
Hendershot, Case No. 08-4419, 2010WL1687727, slip op. at *5 (6th
Cir. Apr. 27, 2010).
Additionally, the use of too tight handcuffs does not
involve excessive force where the plaintiff does not initially
complain about the handcuffs, and when the plaintiff does complain,
the officers immediately respond. See Burchett, 310 F.3d at 944-45
(rejecting plaintiff’s excessive force claim as a matter of law
when officers left him tightly handcuffed in cruiser for three
hours while executing a search warrant).
Moreover, a reasonable
officer could not know a problem existed where a plaintiff makes no
complaints of injuries due to a plaintiff’s handcuffs.
Lyons, 417
F. 3d at 575-76.
In this case, and in light of James’ admissions, James
-14-
fails to allege sufficient facts to show that Rhoads violated
James’ constitutional rights under the objective reasonableness
standard set forth in Kostrzewa.
The circumstances surrounding
James’ arrest warranted the use of handcuffs. The length of James’
detention and handcuffing was based upon reasonable requests of law
enforcement personnel including: (1) Rhoads’ duties as a Butler
County officer in the traffic violation, his on-site investigation,
and his interview of James based on the evidence of firearms and
potential hunting violations found during the traffic stop and (2)
the ODNR’s request that Rhoads stay with James until the ODNR
investigation was complete (doc. 43).
Thus, the presence of the
two loaded rifles found in James’ truck and the forthcoming arrest
more than justified the use of handcuffs.
With respect to the three prong analysis set forth in
Lyons
that
enumerates
the
requirements
for
a
plaintiff’s
handcuffing claim to survive summary judgment, Miller 606 F.3d at
242 (citing Lyons, 417 F.3d at 575-76), James proves the first
prong: that James complained the handcuffs were too tight (doc.
43).
However, James fails to meet the second prong, namely
that Rhoads ignored James’ complaints that the handcuffs were too
tight.
Rhoads attempted to mitigate James’ alleged pain resulting
from the tightness of the handcuffs during the investigation (Id.).
James admits that he did not complain to Rhoads about the handcuffs
-15-
until approximately one and a half hours after Rhoads initially
handcuffed James (Id.).
According to James’ testimony, Rhoads did
not ignore James’ first complaint that the handcuffs were too tight
(Id.).
In fact, the parties agree that at some point Rhoads
responded to James’ complaints and placed the handcuffs in front of
James for James’ comfort (docs. 43, 51). Here, as in Miller, the
law does not require that an officer immediately loosen handcuffs
upon a plaintiff’s complaint. 606 F.3d 240.
The facts corroborate
that Rhoads did not ignore James’ complaints about the tightness of
handcuffs,
but
acted
upon
such
complaints
and
loosened
the
handcuffs accordingly (docs. 43, 51).
James’ Memorandum Opposing Summary Judgment suggests that
Rhoads violated the Constitution because Rhoads should have known
that James was in pain (doc. 51).
However, James’ argument
misapplies the standard for denying qualified immunity.
The test
is whether an officer’s use of force is objectively unreasonable.
See Graham 490 U.S. at 397; Lyons, 417 F.3d at 575-76.
In Lyons,
the court found that the plaintiff’s allegation of excessive force
from
tight
handcuffing
did
not
rise
to
the
level
of
a
constitutional violation because the plaintiff had not complained
of her pain to the officers. 417 F.3d at 576.
There, the court
noted that in the absence of an obvious physical problem created by
the handcuffs, it is fair to question how a reasonable officer
should
have
known
that
a
problem
-16-
had
occurred
due
to
the
handcuffing. Id.
In this case, it is objectively reasonable that
Rhoads did not know of James’ pain because James did not complain
about the handcuffs after Rhoads repositioned the handcuffs in
front of James’ body or when Rhoads replaced the handcuffs behind
James’ back to ensure a safe transport to jail (doc. 51).
Rhoads
could not reasonably know any further problems existed if James did
not tell Rhoads of such problems (doc. 43).
James also fails to meet the third prong of the Lyons
standard: that James experienced some physical injury resulting
from the handcuffing.
See Miller 606 F.3d at 242 (citing Lyons,
417 F.3d at 575-76).
The booking report, created at the Butler
County Jail and signed by James, does not indicate that James’
wrists or any other body parts were injured during the course of
his arrest, investigation, or time at jail (doc. 43).
The report
does indicate that James did not request medical attention while at
jail, immediately after he experienced the allegedly excessive
handcuffing (Id.).
Moreover, James (1) did not receive medical
treatment for his wrists after his release from jail; (2) did not
complain to officers or jail officials of pain in James’ shoulder
or back; and (3) did not tell his doctor or chiropractor about the
handcuffing when receiving treatment for shoulder and back pain
(Id.).
James lacks any medical evidence to support a causal
connection between his alleged shoulder and back pain and his
handcuffing on November 13, 2007. Thus, James fails to satisfy the
-17-
third prong of the standard set forth in Lyons because James’
booking report and medical records do not support his claims of
injuries that allegedly resulted due to the handcuffing.
James fails to establish that Rhoads violated James’
constitutional rights, because the second and third prongs of the
Lyons excessive force analysis are not satisfied.
See Morrison,
583 F.3d at 402 (ruling physical injury could be a genuine issue of
fact because plaintiff had satisfied the first two prongs of the
test for excessive force in handcuffing); Lyons, 417 F.3d at 576
(explaining that plaintiff must demonstrate both that officers
ignored plaintiff’s complaints and that plaintiff suffered physical
injury); Burchett, 310 F.3d at 917 (holding no claim for excessive
force because plaintiff did not initially complain of pain from
handcuffs and officers responded once plaintiff did complain).
In
the absence of an obvious physical problem or injury caused by the
handcuffs, or ignored pleas from James to loosen the handcuffs, it
is fair to ask how Rhoads, acting as a reasonable officer, should
have known that a injury had occurred.
Accordingly, James fails to create a genuine issue of
material fact as to whether Rhoads violated James’ Fourth Amendment
rights.
The
facts
unconstitutionally
at
hand
excessive
do
not
force.
rise
In
to
the
the
level
absence
of
of
a
constitutional violation, qualified immunity attaches and Rhoads is
entitled to summary judgment.
-18-
B.
Defendant Tunnell’s Motion for Summary Judgment
As an initial matter, James cites to the case of Spangler
v. Wenninger, 2010 U.S. App. LEXIS 16395 (6th Cir.), in his Reply
Memorandum to Tunnell’s Motion for Summary Judgment, arguing that
the Sixth Circuit has already adjudicated this same claim and issue
(doc. 59).
Notably, however, the Spangler
case is patently
different from the case before this Court, and James’ reliance on
the case is misguided.
In Spangler, officers knowingly destroyed
personal and/or real property during the execution of a search
warrant for a dead body.
Here, James makes no claims and presents
no evidence that any of his property was destroyed, knowingly or
unknowingly, during the search of his home (doc. 1).
Also, in
Spangler, the plaintiff successfully established that the officers
were actual and active participants in the unreasonable conduct.
Here, James has failed to establish that Tunnell actually and/or
actively participated in any unreasonable conduct. Spangler offers
James no assistance here.
James brings this action pursuant to 42 U.S.C. § 1983,
alleging that Tunnell’s conduct (namely Tunnell’s supervision of,
participation
in,
and
approval
of
or
acquiescence
of
the
investigation) during the search of James’ home constituted an
unreasonable search and seizure that violated James’ constitutional
rights.
Summary judgment is appropriate at this time because the
facts presented do not establish that Tunnell personally engaged in
-19-
or directed others to engage in, unreasonable conduct that amounted
to an unreasonable execution of the valid search warrant.
When reviewing a Motion for Summary Judgment, in order to
assess whether any triable issues of fact exist, the Court reviews
the entire record, including the evidence presented by both sides,
and, viewing the facts in the light most favorable to the nonmoving
party,
the
Court
determines,
based
on
the
evidence
presented, whether one party is entitled to judgment as a matter of
law.
Patton, 8 F.3d at 346; Anderson, 477 U.S. at 251-52.
The
summary judgment standard requires that the Court view disputed
facts in the light most favorable to Plaintiff, which means that
the Court, in reviewing the entire record, must draw all reasonable
inferences in Plaintiff’s favor.
Matsushita, 475 U.S. at 587 (“On
summary judgment the inferences to be drawn from the underlying
facts... must be viewed in the light most favorable to the party
opposing the motion”).
However, a non-moving party cannot simply
rest on their pleadings, and when the party fails to establish a
material factual dispute by providing evidence beyond that set
forth in the allegations in his pleadings, summary judgment for the
moving party is warranted. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).
Clearly, the Court is under no duty to simply
accept James’ assertions and conclusory statements as true.
If
that were so, a court could never grant summary judgment to a
defendant because every plaintiff could simply rest on his story.
-20-
James argues that several reasonable inferences can be
made in his favor: (1) Tunnell, along with the other officers, was
substantially
prejudiced
against
James
and
participated
in
unconstitutional acts to punish James; (2) Tunnell encouraged,
authorized, approved, or acquiesced in unconstitutional acts that
occurred in James’ home; and (3) such allegedly unconstitutional
acts were conspicuous acts meant to embarrass and mock James (doc.
59). James argues that summary judgment is inappropriate and he is
entitled to the reasonable inference that Tunnell is lying because
Tunnell is biased towards James and trying to protect himself and
the other officers (Id.).
Notably, he offers no evidence of this
alleged bias or prejudice.
In order to prevail on a 42 U.S.C. § 1983 claim, a
plaintiff must allege (1) conduct by a person (2) who acted under
color of state law, (3) which caused a deprivation of a federally
protected right. West v. Atkins, 487 U.S. 42, 48 (1988).
An
individual defendant cannot be held liable when a plaintiff fails
to show that the official was directly involved or caused the
events at issue.
Petty v. County of Franklin, Ohio 478 F.3d 341,
349 (6th Cir. 2007).
Merely listing the names in the caption of
the complaint and alleging constitutional violations in the body of
the complaint is not enough to sustain recovery under § 1983.
Gilmore v. Corrections Corporation of America, 92 Fed. App’x 188
(6th Cir. 2004) (affirming dismissal of civil rights complaint,
-21-
filed pursuant to 42 U.S.C. § 1983, because plaintiff failed to
indicate individual defendants violated his constitutional rights).
When
a
court
evaluates
whether
a
violation
of
a
constitutional right has occurred, it is important for the court to
evaluate the specific conduct that a complaining party alleges to
be unconstitutional. See United States v. Ramirez, 523 U.S. 65, 71
(U.S. 1998). In cases regarding the Fourth Amendment and execution
of warrants, the general test is whether the officer’s actions were
“reasonable.” Id.
Indeed, the execution of a warrant is governed
by the general touchstone of reasonableness that applies to all
Fourth Amendment analysis.
See Pennsylvania v. Mimms, 434 U.S.
106, 108-109 (2007).
Applying these principles to the facts at hand, the Court
concludes
rights.
that
Tunnell
did
not
violate
James’
constitutional
James simply does not adduce facts sufficient to overcome
the facts presented in Tunnell’s Motion for Summary Judgment.
In
James’ Complaint, he claims that the search was unreasonable based
on several alleged actions: (1) a mounted buck head was moved from
one room to another and decorated with a clown hat and Christmas
lights; (2) two videos depicting homosexual sex were removed from
a hiding place in James’ closet and left out on his bed; (3) a
drawer next to James’ bed was opened to reveal sex toys, which were
activated so they were vibrating when James returned home; (4) a
semi-automatic military gun was removed from its safe and left on
-22-
the floor; and (5) magazines and bullets were removed from storage
and placed upright around the house (Id.).
However, when James refers to these specific actions in
his Complaint, he generally references the possible actors by
alleging that “while in James’ home, the officers” collectively
engaged in the alleged unconstitutional conduct.
Consequently,
James offers speculation and opinion rather than facts to support
his specific allegations against Tunnell.
James names Tunnel as a
defendant; however, he has adduced no facts that demonstrate that
Tunnell engaged in specific conduct that amounts to an unreasonable
execution of the warrant.
The Court turns to the specific allegations in James’
complaint.
1.
Claims Regarding Weapons and Ammunition
With respect to James’ claim that ammunition and a weapon
were seized from secure locations in the home, moved from the
secure locations, and placed in different and unsecure locations in
the home, James’ Complaint suggests that the leaving of a weapon
and ammunition in allegedly “unsecure” locations constituted an
unreasonable search and seizure. The Court disagrees. Tunnell and
the
other
officers
were
hunting and wildlife laws.
search for ammunition.
investigating
allegations
of
illegal
Such a search necessarily involves a
Indeed, Judge Oney specifically provided
that fired rifle ammunition was within the scope of the search
-23-
(doc. 53).
Further, Tunnell contends that he and the other
officers attempted to return the items to their original locations,
but the officers did not replace the semi-automatic gun because it
was difficult to do so due to the gun’s large size and resemblance
to a machine gun (Id.).
Moreover, a reasonable officer, during a
valid search warrant, may very well take ammunition out of stored
locations to examine it and search for fired rounds or move weapons
out of a safe.
Accepting as true that the semi-automatic gun was
not returned to its safe and that some ammunition was moved from
its previous location, such acts in no way rise to the level of a
constitutional violation.
James has offered no support for such a
dramatic extension of the protections of the Fourth Amendment–that
failure to return items moved during a lawful search to their
previous locations constitutes an unreasonable execution of the
search.
On its own, the Court has been unable to find any such
support. To the extent James’ claims rest on an assertion that his
constitutional rights were violated when Tunnell failed to return
the gun and ammunition–or failed to ensure that his officers do
so–James’ claims fail as he has not adduced evidence sufficient for
a finding of a constitutional violation.
2.
Claims Regarding Decoration of Animal Mounts
With respect to James’ claim that the officers placed
several items of property including “a hat, Christmas lights, and
goggles on deer antlers that were affixed to James’ wall,” Tunnell
-24-
contends that he did not move any such articles to decorate animal
mounts nor directed anyone else to do this (doc. 53).
In fact,
Tunnell recalls, and the “entry video” confirms, that some of the
deer mounts were already decorated when the officers entered the
house (Id.).
In fact, James acknowledges that the animal mounts
had been previously decorated with various items (Id.).
Even if
such items were moved and placed on different animal mounts, such
actions do not amount to unreasonable police conduct.
In a search
warrant where multiple animal mounts are seized and taken, it is
reasonable that items placed on such mounts could be moved in the
process of collecting the evidence. In sum, to the extent that any
animal mounts were decorated, James does not assert facts that
Tunnell participated in the decoration of such mounts, nor does he
adduce evidence sufficient to create a genuine issue of fact with
respect to whether his Fourth Amendment rights were violated by
officers moving decorations from one deer head to another.
3.
Claims Regarding
Sexual Devices
Pornographic
Videos
and
With respect to James’ claim that two pornographic tapes
and three sexual devices were left out, Tunnell contends that he
did not find and “leave out in the open” any pornographic videos,
nor did Tunnell direct, authorize, or observe any other officer to
engage in such conduct (Id.).
Tunnell notes, and James confirms,
that the videos were not obviously labeled as to their content and
that one would not know that the videos contained homosexual
-25-
pornography unless one viewed the videos (Id.).
Tunnell did ask
other officers to review and examine tapes, but such actions were
permitted by the warrant because illegal hunting activity is often
recorded and memorialized on various forms of media (Id.).
Thus,
moving and viewing tapes that are not overtly marked is not
unreasonable given the context of the authorization to search for
recorded evidence of illegal hunting activities. James lacks facts
that demonstrate that the two tapes were purposely left out by any
officer.
Beyond that, James fails to demonstrate that Tunnell
himself left the tapes out or directed any officer to deliberately
do so.
Tunnell further maintains that he did not observe any
vibrators, turn them on and “leave them out,” or direct any other
officer to do so (Id.).
Tunnell notes that while it is possible
items may be moved in a search, he would not handle items such as
the sexual devices due to health and safety concerns (Id.). Again,
James lacks factual support that Tunnell turned on and left out
these devices or that Tunnell directed anyone else to do so.
Indeed, the entry/exit video clearly shows the state of James’
bedroom both before and after the search, and neither homosexual
video tapes nor vibrating sexual devices are visible.
The only
sexually-related material evident on the entry/exit video is a
stack of Playboy magazines on the bathtub rim and a blow-up doll,
and the video clearly shows that neither the magazines nor the doll
-26-
was disturbed during the search.
In sum, James has not demonstrated that any genuine
material factual disputes exist such that this matter should
proceed to trial.
The facts do not support James’ claims that
Tunnell personally engaged in unreasonable conduct that deprived
James
of
federal
protected
rights.
Notably,
during
James’
deposition, James conceded that he does not have evidence that
Tunnell personally engaged in any of the conduct listed in the
complaint (Id.). Instead, James argues that Tunnell is responsible
for the alleged conduct that occurred during the search because
Tunnell obtained the search warrant (Id.).
Regardless, the facts
simply do not demonstrate that Tunnell engaged in specific conduct
that amounts to an unreasonable execution of the warrant, nor do
the facts support an inference that Tunnell permitted his officers
to engage in such conduct.
While the Court is sympathetic to James being upset that
officers searched his home, albeit with a valid and lawful search
warrant, there is simply insufficient evidence to support James’
federal claims against Tunnell.
exists
with
respect
to
No genuine issue of material fact
whether
Tunnel
violated
James’
constitutional rights during the course of the ODNR’s lawful
inspection of James’ home, and Tunnell is entitled to summary
judgment.
C.
Tunnell’s Qualified Immunity Claim
-27-
In Tunnell’s Motion for Summary Judgment, Tunnell also
argues that he is entitled to summary judgment because qualified
immunity protects him.
The Court, however, need not address
whether Tunnell has a valid qualified immunity argument because the
Court grants Tunnell’s Motion for Summary Judgment based on the
reasons enumerated above.
V.
Conclusion
No genuine issue of material fact exists with respect to
whether either Defendant violated James’ constitutional rights
during the course of James’ arrest or the search of James’ home.
Accordingly, for the reasons indicated herein, the Court GRANTS
Defendants’
Motions
for
Summary
Judgment
(docs.
43,
53
respectively).
SO ORDERED.
Dated: August 4, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
-28-
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