Baker et al v. Union Township, Ohio et al
Filing
47
ORDER granting in part and denying in part 28 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 8/21/13. (ba1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TOMMY BAKER, et al.,
CASE NO.: 1:12-cv-112
Plaintiffs,
Judge Michael R. Barrett
v.
UNION TOWNSHIP, OHIO, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment of
Defendants Union Township, Ohio, The Union Township Board of Trustees, and
Michael Ventre (collectively, "Defendants"). 1 (Doc. 28). Plaintiffs Tommy Baker and
Jennifer Jones have filed a response in opposition (Doc. 39), and Defendants have filed
a reply (Doc. 44). This matter is now ripe for review.
I.
FACTUAL BACKGROUND
This case is based upon an incident that occurred on February 14, 2011 in Union
Township. The basic facts regarding that incident are as follows:
On February 14, 2011, two officers of Union Township's police department,
Officer Michael Ventre ("Officer Ventre") and Officer Danielle Smith ("Officer Smith"),
received a 911 dispatch call from the bartender at the VFW Hall regarding a disturbance
involving a physical fight between Plaintiff Tommy Baker ("Baker") and Claude Snow.
(Doc 19, pp. 27-29, 39, 40-44, 46-47; Doc. 23, pp. 49-51; Doc. 27, p. 74). After Officer
Ventre and Officer Smith arrived at the VFW Hall, Baker came out of the front door, but
1
Union Township, Ohio and the Union Township Board of Trustees are collectively referred to in
this motion as "Union Township."
1
when he saw the officers he turned around to go back inside. (Doc. 19, pp. 50-51; Doc.
27, pp. 88-90). Baker then exited the VFW Hall through the back door to avoid the
police officers.
(Doc. 19, pp. 51-52).
As he exited the back door, Baker walked
between a parked truck and a parked van and then he began to jog to his nearby home.
(Id. at 53).
At that same time, Officer Ventre had exited his police cruiser to wait for other
officers to arrive at the scene and he heard a door shut at the back of the VFW Hall and
observed Baker walking towards the woods.
(Doc. 27, pp. 90-91).
Officer Ventre
claims that he called out to Baker, identifying himself as a police officer to Baker in a
normal speaking voice and then requesting that Baker come back to speak to him. (Id.
at 93-94). When Baker did not come back, Officer Ventre contends that he began
walking towards Baker at which time Baker suddenly took off running towards the
woods. (Id. at 94-95). Officer Ventre testified that he began running as fast as he could
to catch up with Baker and then followed Baker into the woods. (Id. at 95).
During the pursuit, Officer Ventre displayed his Taser, and he contends that he
gave verbal commands to Baker to get on the ground and advised Baker that he was
under arrest. (Id. at 96). According to Officer Ventre, Baker refused to comply and
instead clenched his fist and assumed a fighting stance. (Id.) Officer Ventre testified
that at that point he deployed his Taser at Baker but the Taser had no effect, as the top
probe struck him somewhere in the chest but the bottom probe did not connect with
him. (Id. at 96-97). Baker, however, testified that as he was jogging towards his home,
he heard something and then felt something hit him in the leg at which point he fell to
the ground in pain. (Doc. 19, p. 54). Baker then realized he had been tased. (Id. at 54-
2
57). Nevertheless, Baker stood up and began running away from the officers to his
home. (Id. at 56-58; Doc. 27, pp. 97-98).
Officer Ventre testified that he continued chasing Baker towards his home and
observed Baker run up the stairs to a house, enter the front door, and shut the door
behind him. (Doc. 27, pp. 97-98). Officer Ventre testified that when he ran up the
stairs, he discovered the front door was locked, yelled "police department," and advised
that he was going to kick in the front door if it was not immediately opened. (Id. at 98).
Defendant Jennifer Jones ("Jones") came to the door, opened it, and let Officer Ventre
into the house. (Id.)
According to Officer Ventre, the house was dark when he entered the living room
area. (Id. at 96-98). As Officer Ventre entered, he went around a section of furniture,
and observed Baker in a dark hallway. (Id. at 98). Officer Ventre claims that he then
displayed his Taser and gave Baker more verbal commands to get on the ground. (Id.)
He claims that Baker just stood there with his fists clenched.
(Id.) Officer Ventre
testified that he again advised Baker to get on the ground, but Baker instead
approached a closed door and opened it. (Id.) Officer Ventre testified that as Baker
opened the door, he deployed the second Taser into Baker's back, which took effect
and caused Baker to fall into the doorway. (Id. at. 98-99). Officer Ventre testified that
as he tased Baker in the back when he was moving towards the door, he was unaware
that the door led to an open stairwell. (Id. at 98-100). He further testified that as he
approached the open door, he realized for the first time that the door opened into a
stairwell and he observed Baker at the bottom of that stairwell. (Id. at 99).
Baker offers a different account of what occurred once Officer Ventre entered the
house. Baker testified that when Officer Ventre entered the house, the lights were on
3
and Baker already had opened the door to his basement intending to go downstairs.
(Doc. 19, pp. 61, 65, 67). He testified that when Officer Ventre saw him, Baker was
standing in the middle of the hallway in front of the door to the basement stairs. (Id. at
67, 81). At that time, Officer Ventre was standing near a cupboard in the living room.
(Id. at 84-86). Baker testified that he did not move from his position until Officer Ventre
deployed the Taser, at which point he twisted his upper body toward the open door. (Id.
at 66-68, 81). After he was tased, Baker attempted to grab for the handrail to the
basement stairs, but missed and tumbled down the stairs. (Id. at 66-68, 81). Officer
Ventre then called the life squad and Baker was rushed to the hospital. (Id. at 71).
Baker testified that his injuries included a broken neck, damage to the nerves in his arm,
damage to his back, and potential cognitive impairments due to bleeding in his brain.
(Id. at 23, 98-113, 121-22).
Jones offers a third account of what occurred at the house. She testified that
when Baker entered the home, he told her the police had tased him and instructed her
not to open the front door. (Doc. 21, p. 31). When Jones heard pounding on the front
door, she turned on the front porch light and saw a police officer standing there
repeating "police, open the door." (Id. at. 32-33). When Jones opened the door for
Officer Ventre, he pushed her and raised his right hand at Baker who was standing in
the hallway with the basement door "leaning on him." (Id. at 33-34). The door was
partially opened and partially closed. (Id. at 34-36). Jones testified Baker was a big guy
and was facing her and Officer Ventre with his body partially in the hallway and partially
in the doorway. (Id. at 34-36). Jones testified that Officer Ventre told Baker "don’t run"
at which point Baker "turned to go down the stairs." (Id. at 36-37, 43). Jones testified
that she yelled "don't tase him" and looked away as Officer Ventre tased Baker in the
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back left shoulder area as he turned toward the open door. (Id. at 36-38, 43, 47-48, 51,
61-62, 71). Jones testified that Baker did not put his hands up, begin to get down on
the ground, or indicate surrender prior to being tased. (Id. at 50-51). Afterwards, Jones
went to see if Baker was alive but Officer Ventre told her to stay away. (Id. at 55).
Jones testified that she has not sought medical, psychological or counseling treatment
as a result of the incident and is no longer emotionally affected by the incident. (Id. at
17, 67-68).
Following the incident, a police report and a use of force report both were
prepared.
(Doc. 27, pp. 144-45, 148-49).
The police report charged Baker with
resisting arrest, obstructing official business, and disorderly conduct while intoxicated,
all of which were misdemeanors. (Id. at 144-45). Both reports included a narrative of
the incident from Officer Ventre. (Id. at 144-45, 148-49).
The next day, Chief Terrence Zinser, the police chief at the Union Township
Police Department, conducted a use-of-force investigation of the incident. (See Doc.
25, pp. 1, 8-10, 23-26, 32, 47-48). Based on the use-of-force investigation, Chief Zinser
determined that Officer Ventre's use of force was appropriate, that Officer Ventre did not
violate the use-of-force policy of Union Township, and that Officer Ventre did not need
retraining. (Id. at 19, 32). Subsequently, Baker pled no contest to the resisting arrest
charge in exchange for the dismissal of the obstructing official business and disorderly
conduct while intoxicated charges. (Doc. 19, pp. 91-92; Doc. 28-1).
On February 7, 2012, Baker and Jones filed this lawsuit against Union Township,
the Union Township Board of Trustees, and Officer Ventre, both individually and in his
official capacity. (Doc. 1). In the Complaint, Baker asserts claims for (1) excessive
force under 42 U.S.C. § 1983 against all Defendants; and (2) assault and battery
5
against Officer Ventre.
(Doc. 1).
Jones asserts a claim for negligent infliction of
emotional distress against Officer Ventre. (Doc. 1). Baker and Jones seek an award of
compensatory damages against all Defendants, as well as punitive damages against
Officer Ventre. (Doc. 1).
II.
LEGAL STANDARD
Summary judgment is appropriate "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 dispute is "genuine" when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 1065 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is
"material" only if its resolution affects the outcome of the suit. Id.
On summary judgment, a court must view the evidence and draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The moving party
has the burden of showing an absence of evidence to support the nonmoving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986).
Once the moving party has met its burden of production, the nonmoving party
cannot rest on his pleadings, but must present significant probative evidence in support
of his complaint to defeat the motion for summary judgment. Anderson, 477 U.S. at
249. "The mere existence of a scintilla of evidence in support of the [nonmoving party's]
position will be insufficient; there must be evidence on which the jury could reasonably
find for the [nonmoving party]." Id. at 252. Entry of summary judgment is appropriate
"against a party who fails to make a showing sufficient to establish the existence of an
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element essential of that party's case, and on which that party will bear the burden of
proof at trial." Celotex, 477 U.S. at 322.
III.
ANALYSIS
Defendants move to dismiss the claims asserted against them on multiple
grounds. The Court will address each of those grounds below.
A. Section 1983 Claims Against Officer Ventre
Officer Ventre contends that the Section 1983 claim against him should be
dismissed for two reasons: (1) he is entitled to qualified immunity; and (2) any claim
that Baker may have for excessive force is barred by Heck v. Humphrey, 512 U.S. 477,
114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). The Court will address each argument
separately below.
1. Qualified immunity
Officer Ventre first argues for dismissal on the grounds of qualified immunity.
The doctrine of qualified immunity protects "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, 102 S. Ct. 2727,
73 L. Ed. 2d 396 (1982) (citing Procunier v. Navarette, 434 U.S. 555, 565, 98 S. Ct. 855,
55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992; 43 L. Ed.
2d 214 (1975)). Qualified immunity involves a two-step inquiry: (1) whether "[t]aken in
the light most favorable to the party asserting the injury, . . . the facts alleged show the
officer's conduct violated a constitutional right" and (2) "whether the right was clearly
established." Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151; 150 L. Ed. 2d 272
(2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236, 129 S.
7
Ct. 808, 172 L. Ed. 2d 565 (2009) (explaining that courts may "exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand."); Brennan
v. Twshp. of Northville, 78 F.3d 1152, 1154 (6th Cir. 1996). Some panels of the Sixth
Circuit have added a third prong that requires the Court to determine whether the
plaintiff offered sufficient facts to "'indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional rights.'"
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quoting Williams v. Mehra, 186 F.3d
685, 691 (6th Cir. 1999) (en banc)). However, the Sixth Circuit has explained that the
first two prongs mirror the two prongs of the Saucier test, while the third prong simply
acknowledges the reasonableness requirement that is implicit in the clearly established
prong as explained in Saucier. Sample v. Bailey, 409 F.3d 689, 696 n.3 (6th Cir. 2005).
"Qualified immunity ordinarily applies unless it is obvious that no reasonably
competent official would have concluded that the actions taken were unlawful."
Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (citing Ewolski v. City of
Brunswick, 287 F.3d 492, 501 (6th Cir. 2002)). Qualified immunity "'gives ample room
for mistaken judgments' by protecting 'all but the plainly incompetent or those who
knowingly violate the law.'" Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct.
534, 116 L. Ed. 2d 589 (1991)) (additional internal quotations omitted).
Qualified
immunity "applies irrespective of whether the official's error was a mistake of law or a
mistake of fact, or a mistake based on mixed questions of law and fact." Id. (citing
Pearson, 555 U.S. at 231).
While the defendant bears the burden of pleading the defense of qualified
immunity, the ultimate burden of proof is on the plaintiff to show that the defendant is
8
not entitled to qualified immunity. Miller v. Admin. Office of Courts, 448 F.3d 887, 894
(6th Cir. 2006) (citing Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)).
a. Whether there was a violation of a constitutional right
The first step in evaluating Baker's Section 1983 claim against Officer Ventre is
to identify the specific constitutional right allegedly violated. Here, Baker asserts that
Officer Ventre's second tasing of Baker violated Baker's right to be free from excessive
force under the Fourth Amendment.
The second step is to determine whether the facts set forth by the parties, and
construed in the light most favorable to Baker, demonstrate a violation of that
constitutional right. A claim of excessive force in the course of making an arrest is
properly analyzed under the Fourth Amendment's "objective reasonableness" standard.
Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865; 104 L. Ed. 2d 443 (1989).
Thus, the question is whether Officer Ventre's actions were objectively reasonable in
this matter. Scott v. Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d
686 (2007).
In "determining the reasonableness of the manner in which a seizure is effected,"
a court "'must balance the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the governmental interests alleged to
justify the intrusion.'" Id. at 1778 (quoting United States v. Place, 462 U.S. 696, 703,
103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983)). As the Sixth Circuit has explained: "'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.'"
Marvin v. City of Taylor, 509 F.3d 234, 245 (6th Cir. 2007) (quoting Burchett v. Kiefer,
310 F.3d 937, 944 (6th Cir. 2002)).
"The proper application [of the objective
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reasonableness test] 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. In
addition, the Sixth Circuit has found that "the definition of reasonable force is partially
dependent on the demeanor of the suspect." Marvin, 509 F.3d at 245 (citing Solomon
v. Auburn Hills Police Dep't, 389 F.3d 167, 174 (6th Cir. 2004)).
Baker contends that the proper analytical framework in an excessive force case
is a segmenting approach that requires a reevaluation of the reasonableness of the
force used as the circumstances change. Dickerson v. McClellan, 101 F.3d 1151 (6th
Cir. 1996). Specifically, Baker focuses on only the segment of his encounter with the
officers in the home just before and at the time Baker was tased, which is the only
segment that Baker challenges as involving excessive force.
While the Court agrees that a segmenting analysis is correct, it also is necessary
for the Court to view Officer Ventre's actions within the context of the totality of events.
Given that the ultimate question is whether Officer Ventre's actions were reasonable,
the use of force "analysis must consider all of the knowledge possessed by [the officer]
at the moment he determined to employ . . . force. We cannot simply take a snapshot
of the moment and consider it in isolation from other information."
Bouggess v.
Mattingly, 426 F. Supp. 2d 601, 607 (W.D. Ky. 2006) (citing Tenn. v. Garner, 471 U.S.
1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)).
Here, the Court considers whether the force used by Officer Ventre during the
second tasing was reasonable under the totality of the circumstances, construing the
facts in favor of Baker. We first consider the severity of the crime at issue. When
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Officer Ventre was dispatched to the scene, he was informed that there had been a
disturbance involving Baker and that Baker had refused to leave.
A disturbance
generally is not a serious crime, and thus, this fact weighs in favor of using less force in
arresting someone for that conduct. See Thacker v. Lawrence County, 182 F. App'x
464, 472 (6th Cir. 2006) (although disorderly conduct generally is a non-serious crime
which weighs in favor of using less force, the officers' actions in wrestling resistant
defendant to the ground was constitutional). As such, the reasonableness of Officer
Ventre’s actions must be weighed against this backdrop.
Solomon v. Auburn Hills
Police Dep't, 389 F.3d 167, 174 (6th Cir. 2004).
The Court next considers whether Baker posed an immediate threat to the safety
of the officers or others, and whether he was actively resisting arrest or attempting to
flee. There is no dispute that Baker did not act violently towards the officers. However,
there also is no dispute that he fled from the officers and continued to flee after the first
tasing. He fled into the home and locked the door. What happened once Officer Ventre
entered the home is subject to genuine issues of material fact. On one hand, Officer
Ventre contends that when he entered the home less than a minute later, Baker was
standing in a dim hallway with the door next to him closed with his fists clenched. Baker
then reached for and opened the door next to him, at which point Officer Ventre
commanded him not to run and then tased him. Officer Ventre contends that he did not
see or know that the door Baker opened led to a stairwell.
However, Baker and Jones both contend that Officer Ventre found Baker
standing inside a partially opened door, with the door leaning on Baker's left shoulder.
According to Jones, Baker was a big guy. However, they contend that Baker was not in
a fighting stance when Officer Ventre entered the home, but he also did not surrender or
11
otherwise indicate an intent to surrender when Officer Ventre entered the home. The
facts construed in favor of Baker also suggest that the hallway was lit and that Officer
Ventre did not command Baker to do anything to show his intent to surrender. Baker
testified that he did not move from the door during the time Officer Ventre was in the
home except at the exact moment he was being tased. Jones, however, testified that
she heard Officer Ventre say to Baker "don’t run," which occurred as Baker turned
towards the entry of the doorway. Jones yelled "don't tase him," and then turned away
as she saw the Taser being deployed. Jones testified that there was no time for a
reaction by Baker between the "don’t run" command and the deployment of the Taser.
Courts have found that genuine issues of material fact as to the nature of events
that occurred will preclude summary judgment based on the first prong of an excessive
force claim. For example, in Shreve v. Jessamine County Fiscal Court, 453 F.3d 681,
686-87 (6th Cir. 2006), the Sixth Circuit reversed the grant of summary judgment to the
defendant because there were genuine issues of material fact as to whether excessive
force was used when the plaintiff's account of the events showed that after she was
thrown to the ground and pepper sprayed, and she refused to produce her hands for
cuffing at which time the deputy struck her with a stick and repeatedly jumped on her
back with his knee for fifteen minutes. The Sixth Circuit analyzed the circumstances as
follows:
[E]ven to a reasonable policeman in the heat of the moment, the
deputies' interest in an arrest could not have justified striking [the
plaintiff] in the eye with a stick ten to twelve times while she was on
the ground and "out of it" due to the pepper spray. Nor could the
interest in an arrest have justified jumping up and down on her back
with a knee, or striking her about the neck and shoulders with the
stick, for around fifteen minutes. These alleged actions go so far
beyond forcing [the plaintiff] to produce her hands that no reasonable
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policeman could see them as nonexcessive, not even in the heat of
the situation.
It is true that the evidence of the deputies at this stage appears
significantly stronger than that of Shreve. All except [the plaintiff]
testified consistently to a version of events in which no excessive
force occurred. [The Plaintiff], however, swore to a version of the
facts that does amount to excessive force. To be sure, there are
inconsistencies in [the plaintiff's] statements: she did not see the
deputies holding nightsticks while hitting her, and there is not much
physical evidence in support of her version of events. She did
however testify that she felt the stick hitting her and that she saw a
deputy holding a stick at some point. It is therefore ultimately up to
the jury to believe her or not.
This is not a case where the defendants' evidence is so objectively
compelling that no reasonable juror could believe Shreve. In
determining whether to grant summary judgment, a court may not
make determinations of witness credibility.
Id. at 687-88.
Similarly, in Baker v. City of Hamilton, 471 F.3d 601, 607-08 (6th Cir. 2006), the
Sixth Circuit found that under the totality of the circumstances there were genuine
issues of material fact as to whether the officer had used excessive force on two
suspects. The first suspect initially fled from the officer, and the officer followed him into
a row of bushes. Id. at 607. At that point, the suspect came out from behind the
bushes with his hands straight up in the "surrender" position. Id. When he came out of
the bushes, the officer struck the suspect in the head and knocked him to the ground,
yelling "[t]hat's for running from me."
Id.
The Sixth Circuit held that because the
suspect had surrendered before being struck, showing he was unarmed and compliant,
a reasonable jury could conclude that the officer's strike to the suspect's head was
unjustified and excessive. Id.
Further, a jury could have found that the officer acted
unreasonably in striking the suspect's knee after he had fallen to the ground because
the repeated use of force "after a suspect has been incapacitated or neutralized is
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excessive as a matter of law." Id. The Sixth Circuit found that the fact that the suspect
had not yet been handcuffed at the time he was struck did not preclude a finding of
unreasonableness. Id. (citing Tapp v. Banks, 1 Fed. App'x 344, 350 (6th Cir. 2001)
("[I]t is not objectively reasonable for an officer dealing with an essentially compliant
person, to strike the person's legs twelve to fifteen times in the absence of resistance.").
Nor did the fact that the suspect had attempted to evade arrest preclude his claim of
excessive force. Id. at 608 (citing Shreve, 453 F.3d at 687).
Considering the Sixth Circuit precedent, the Court finds that, although it may be a
close call, a reasonable jury adopting Baker's account of events could find that Baker
was essentially compliant, as he was not attempting to flee and was not actively
resisting arrest. A reasonable jury also could conclude that Baker did not pose an
immediate threat to the safety of others given that he had not moved and was not
armed, and that Officer Ventre did not give him time to comply with any command. As
the Sixth Circuit recognized in Baker, the fact that Baker initially attempted to flee does
not preclude a finding of excessive force.
Moreover, in evaluating the totality of the circumstances, the Court also must
consider the location of Baker at the time of the tasing, which was near the top of a
staircase leading to a basement. On this issue, the Court looks to the Eighth Circuit's
decision in McKenney v. Harrison, 635 F.3d 354, 359-60 (8th Cir. 2011). The McKinney
court held that a police officer was entitled to qualified immunity even though he tased
an individual as he lunged toward an open window six to eight feet away, and that
individual then continued through the window and died from his injuries. Id. at 360. The
court recognized that "although the outcome was tragic, a reasonable officer, knowing
that a Taser is designed to incapacitate instantly, could have believed that the force
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would incapacitate [the individual] before he reached the window, while he was not in an
'elevated position' and likely to fall."
Id.
Accordingly, it found that under the
circumstances, the force used by the officer was reasonable. Id.
Here, the facts suggest that Baker may have been closer to the elevated surface
than the plaintiff in McKenney, although the elevated surface in this case may not been
as open and obvious as the window in McKenney. When, however, the facts are
construed in favor of Baker, they could reasonably show that Officer Ventre would have
known that Baker was standing at the top of a stairwell. Specifically, there is testimony
from Baker and Jones that the door to the basement was open and testimony from
Baker that the light in the hallway was turned on. There also is testimony as to the to
the locations where Baker and Officer Ventre allegedly were standing in relation to each
other from which a reasonable jury could infer that Officer Ventre could have seen the
railing in the stairwell. Further, Baker has presented evidence that Union Township
trains its officers not to tase a suspect who is at the top of the stairs because to do so
can result in serious injury or death. (Doc. 25, pp. 33-36; Doc. 36, p. 11). Officer
Ventre also admits that he had been trained to evaluate the environment to look for
elevated surfaces, but that he did not do so in this case before deploying his Taser.
(Doc. 27, pp. 61-62, 68-71, 132).
Although the Court recognizes that Officer Ventre
offers a different version of the facts, a credibility determination must be made as to
which version of facts is accurate before the Court can decide whether, from the
perspective of a reasonable officer on the scene, the force used was not excessive.
That determination is not appropriate for the Court to make at the summary judgment
stage. Instead, the resolution of those discrepancies must be reserved for a jury.
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For the foregoing reasons, the Court does not find that the first prong of the
analysis entitles Officer Ventre to qualified immunity at this stage of the litigation, as the
facts construed in the light most favorable to Baker raise genuine issues of fact that
must be resolved prior to a determination of whether excessive force was used.
b. Whether the constitutional right was clearly established
Next, the Court must consider whether the constitutional right is clearly
established.
The Sixth Circuit recently provided some guidance on how to decide
whether a right has been clearly established:
[T]he Supreme Court has "repeatedly" warned lower courts not to
define the right at "a high level of generality." Ashcroft v. al-Kidd, __
U.S. __, 131 S. Ct. 2074, 2084, 179 L. Ed. 2d 1149 (2011). . . . "The
general proposition" that the Fourth Amendment prohibits police
officers from using excessive force "is of little help in determining
whether the violative nature of [the plaintiff's] particular conduct [was]
clearly established." al-Kidd, 131 S. Ct. at 2084. It is sometimes
worse than that: If a court does not carefully define the right, it risks
collapsing the two qualified-immunity inquiries into one, permitting
the constitutional-violation inquiry always to answer the clearly
established inquiry. Precedent demands instead that we go down the
stairs of abstraction to a concrete, particularized description of the
right. Though not too far down: just as a court can generalize too
much, it can generalize too little. If it defeats the qualified-immunity
analysis to define the right too broadly (as the right to be free of
excessive force), it defeats the purpose of § 1983 to define the right
too narrowly (as the right to be free of needless assaults by lefthanded police officers during Tuesday siestas).
Examples abound of an appropriate middle ground. In an excessiveforce case, that might mean asking whether "a disturbed felon, set
on avoiding capture through vehicular flight [that placed] persons in
the immediate area . . . at risk" had a clearly established right not to
be shot. Brosseau v. Haugen, 543 U.S. 194, 200, 125 S. Ct. 596,
160 L. Ed. 2d 583 (2004) (per curiam). Or, closer to today's case, it
might mean asking "whether a misdemeanant, fleeing from the
scene of a non-violent misdemeanor, but offering no other resistance
and disobeying no official command, had a clearly established right
not to be tased." Cockrell v. City of Cincinnati, 468 F. App'x 491, 495
(6th Cir. 2012).
16
Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 508-09 (6th Cir. 2012). The
Sixth Circuit went on to explain the general position on excessive force cases:
Cases from this circuit and others . . . adhere to this line: If a suspect
actively resists arrest and refuses to be handcuffed, officers do not
violate the Fourth Amendment by using a taser to subdue him.
Consider cases from this circuit first. In Williams v. Sandel, 433 F.
App'x 353 (6th Cir. 2011), officers confronted a suspect who was
high on ecstasy, nude and jogging along the interstate at midnight.
Id. at 354. The suspect refused to be handcuffed, prompting officers
to tase him thirty-seven times (and to use batons and pepper spray
as well) until he stopped resisting. Id. at 362. We held the officers'
use of force was reasonable. Id. at 363. Or consider Caie v. W.
Bloomfield Twp., No. 11-1378, 485 F. App[‘]x[] 92, 2012 U.S. App.
LEXIS 12507, 2012 WL 2301648 (6th Cir. June 18, 2012). After two
officers wrestled the suspect to the ground, he refused to move his
arms from under his body, prompting a third officer to tase him.
2012 U.S. App. LEXIS 12507, [WL] at *2. The tasing was reasonable
given the suspect's "active[] resist[ance] [to] the officers' attempts to
secure his arms behind his back." 2012 U.S. App. LEXIS 12507,
[WL] at *4; see also Williams v. Ingham, 373 F. App'x 542, 548 (6th
Cir. 2010) (officers acted reasonably by tasing suspect who would
not move his hands from under his body).
By contrast, when we have found excessive force, the suspects were
compliant or had stopped resisting. In Kijowski v. City of Niles, 372 F.
App'x 595 (6th Cir. 2010), officers used excessive force by tasing a
wedding guest who was sitting in his truck, not disobeying police
commands. Id. at 600-01. And in Landis v. Baker, 297 F. App'x 453
(6th Cir. 2008), officers used excessive force by repeatedly tasing a
suspect who was pinned on the ground with his face submerged in
muddy water. Id. at 464; see also Roberts v. Manigold, 240 F. App'x
675, 676 (6th Cir. 2007) (officers used excessive force by repeatedly
tasing suspect even though he was "completely pinned"); cf.
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.
2004) (officers used excessive force by dousing suspect with pepper
spray after he was immobilized with handcuffs and leg shackles and
stopped resisting).
A suspect's active resistance also marks the line between
reasonable and unreasonable tasing in other circuits. Compare
McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir. 2011) (tasing
suspect who bolted toward second-story window in an attempt to
escape was not excessive force); Draper v. Reynolds, 369 F.3d
1270, 1277-78 (11th Cir. 2004) (tasing suspect who acted
belligerently and refused to provide his license and registration after
a traffic stop was not excessive force); and Hinton v. City of Elwood,
17
997 F.2d 774, 781 (10th Cir. 1993) (tasing suspect three times who
actively resisted officers' attempts to handcuff him was not excessive
force); with Cavanaugh v. Woods Cross City, 625 F.3d 661, 665
(10th Cir. 2010) (tasing non-resistant suspect was excessive force);
Oliver v. Fiorino, 586 F.3d 898, 906-07 (11th Cir. 2009) (tasing
suspect ten times was excessive force because he stopped resisting
after the first shock); Brown v. City of Golden Valley, 574 F.3d 491,
498-99 (8th Cir. 2009) (tasing car passenger who was not attempting
to flee or resist arrest was excessive force); and Casey v. City of
Fed. Heights, 509 F.3d 1278, 1282 (10th Cir. 2007) (tasing a nonviolent misdemeanant who was not offering any resistance was
excessive force).
One decision bucks this trend—kind of. In two consolidated cases,
the en banc Ninth Circuit held that officers used excessive force by
tasing suspects who offered minimal resistance. Mattos v. Agarano,
661 F.3d 433 (9th Cir. 2011) (en banc). In the first case, a pregnant
woman whom officers pulled over for speeding refused to sign a
citation and refused to get out of her car, leading the officers to tase
her three times and to handcuff her. Id. at 436-38. In the second
case, an officer trying to arrest a domestic-abuse suspect tased the
suspect's wife when she failed to move out of the way. Id. at 438-39.
Whatever glimmer of hope the Ninth Circuit's holdings on the
constitutional issue offer Hagans is closed by the reality that the
court held the officers were entitled to qualified immunity because
the right was not clearly established at the time of the encounters. Id.
at 448, 452. If it did not violate clearly established law to tase a
pregnant mother who refused to sign a traffic citation in November
2004, how could it violate clearly established law to tase an out-ofcontrol, shirtless man strung-out on drugs who was thrashing about
with two officers on the ground in May 2007? [The plaintiff] has not
shown any changes in the law over that period or for that matter any
law specific to the Sixth Circuit that would clearly establish the
illegality of this far more reasonable use of a taser.
The suspect in Hagans was tased in drive-stun mode several times after smoking crack
cocaine, running around his yard screaming, and failing to obey officers' commands to
stop. Id. at 510-11. The Court held that the officer was entitled to qualified immunity on
an excessive force claim because the suspect was out of control and continued to
forcefully resist arrest, and it was not clearly established in May 2007 that using a Taser
18
repeatedly on a suspect actively resisting arrest and refusing to be handcuffed
amounted to excessive force. Id.
In Cockrell v. City of Cincinnati, 468 F. App'x 491, 495-96 (6th Cir. 2012), the
Sixth Circuit again engaged in a similar analysis, stating:
Cases addressing qualified immunity for taser use fall into two
groups. The first involves plaintiffs tased while actively resisting
arrest by physically struggling with, threatening, or disobeying
officers. In the face of such resistance, courts conclude either that
no constitutional violation occurred, or that the right not to be tased
while resisting arrest was not clearly established at the time of the
incident. Mattos, 661 F.3d 433 (holding, in consolidated cases, that
2004 and 2006 taser deployments constituted excessive force, but
did not violate clearly established law, where one plaintiff, a pregnant
woman pulled over for speeding, refused to sign citation, became
agitated, screamed at officers, clung to steering wheel, and was
tased three times, and other plaintiff, also a woman, was shot with
taser in dart mode as she stood between officers and her large,
drunken, aggressive husband who was under arrest); McKenney v.
Harrison, 635 F.3d 354 (8th Cir. 2011) (holding that 2007 taser
deployment against misdemeanant who made sudden move toward
window while being questioned by police and told not to "try anything
stupid" did not constitute excessive force, even though
misdemeanant fell out of window to his death after being tased);
Bryan [v. MacPherson], 630 F.3d 805 [(9th Cir. 2010)] (holding that
2005 taser deployment against motorist yelling angrily and acting
erratically after traffic stop for failing to wear seatbelt violated Fourth
Amendment, but not clearly established law); Baird v. Ehlers, No.
C10-1540JLR, 2011 U.S. Dist. LEXIS 134307, 2011 WL 5838431
(W.D. Wash. Nov. 21, 2011) (holding that using taser three times on
man who, in "drunken stupor," was physically removed from city bus,
and engaged in verbal and physical confrontation with officer, may
have been excessive use of force, but that law regarding taser use
was not clearly established as of November 2009); Carter v. City of
Carlsbad, 799 F. Supp. 2d 1147, 2011 WL 2601027 (S.D. Cal. 2011)
(holding that use of taser against large, belligerent, drunken exmarine who "took an offensive fighting stance" may have been
excessive, but did not violate clearly established law on October 31,
2009); Azevedo v. City of Fresno, No. 1:09–CV–375, 2011 U.S. Dist.
LEXIS 10132, 2011 WL 284637 (E.D. Cal. Jan. 25, 2011) (holding
that use of taser against suspect detained during investigation of
burglary, who fled after being asked about weapons then was
warned to stop, may have violated Fourth Amendment, but did not
violate clearly established law, as of November 2007); Sanders v.
19
City of Dothan, 671 F. Supp. 2d 1263 (M.D. Ala. 2009) (holding that
officer who tased detained, but uncooperative, suspect using drivestun mode did not violate clearly established law, as of August
2005); Beaver v. City of Federal Way, 507 F. Supp. 2d 1137 (W.D.
Wash. 2007) (holding that, of five August 2004 taser deployments
against suspect who fled scene of residential burglary and refused to
obey command to stop, first three were not excessive uses of force,
since officer had to make split-second decisions on how to subdue
disobedient, fleeing felon, while last two constituted excessive force
because suspect was no longer immediate threat; qualified immunity
still was appropriate, however, because law was not clearly
established).
In the second group of cases, a law-enforcement official tases a
plaintiff who has done nothing to resist arrest or is already detained.
Courts faced with this scenario hold that a § 1983 excessive-force
claim is available, since "the right to be free from physical force when
one is not resisting the police is a clearly established right." Kijowski
v. City of Niles, 372 F. App'x 595, 601 (6th Cir. 2010) (quoting
Wysong v. City of Heath, 260 F. App'x 848, 856 (6th Cir. 2008)); see
also Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009)
(holding that tasing non-violent passenger during traffic stop for
failure to hang up from 911 call violated clearly established law, as of
October 2005); Landis v. Baker, 297 F. App'x 453 (6th Cir. 2008)
(holding that repeated use of taser against subdued defendant lying
face-down in swamp water violated clearly established law, as of
November 2004); Casey [v. City of Federal Heights], 509 F.3d 1278
[(10th Cir. 2007)] (holding that officers' tasing [of] compliant, nonviolent misdemeanant violated clearly established law, as of August
2003); Shekleton v. Eichenberger, No. C10-2051, 2011 U.S. Dist.
LEXIS 45038, 2011 WL 1578421 (N.D. Iowa Apr. 26, 2011) (holding
that tasing non-violent misdemeanant, who did not resist arrest,
struggle with, or pose a threat to, officers, or attempt to flee, violated
clearly established law, as of September 2008); Borton v. City of
Dothan, 734 F. Supp. 2d 1237 (M.D. Ala. 2010) (holding that tasing
mentally disturbed patient who was not under arrest three times,
even though she was secured to a gurney with handcuffs and
restraints, was violation of clearly established law, as of August
2006); Orsak [v. Metro. Airports Comm'n Airport Police Dep't], 675 F.
Supp. 2d 944 [(D. Minn. 2009)] (holding that officers who pulled
cyclist from bike, stood him up, and shot him with taser may have
violated clearly established law, as of September 2006); Asten v.
City of Boulder, 652 F. Supp. 2d 1188 (D. Colo. 2009) (holding that
"the unforewarned tasing of a mentally unstable woman [who was
not under arrest] in her own home" violated clearly established law,
as of October 2006).
20
The Cockrell court ultimately held that the case did not fit cleanly within either group
because at no point did the plaintiff use violence, make threats, or even disobey a
command to stop. Id. at 496. Instead, he simply fled. Id. However, the Court found
that "flight, non-violent though it may be, is still a form of resistance." Id. (citing Azevedo
v. City of Fresno, No. 1:09-cv-375, 2011 U.S. Dist. LEXIS 10132, at *29 (E.D. Cal. Jan.
25, 2011) ("[A]lthough Azevedo was not physically resisting arrest, he was actively
fleeing. . . . The active evasion or flight by a non-felon generally favors a police officer's
use of non-deadly force.")).
Accordingly, the Sixth Circuit held that those "broad
principles do not establish the contours of the right [the officer] allegedly violated so
clearly that every reasonable officer would know his actions were unconstitutional, even
today." Id. at 497.
As explained above, there are genuine issues of material fact as to Baker's
demeanor at the time of the second tasing.
Those issues of material fact include
whether Baker was actively resisting or attempting to flee at the time of the tasing, and
whether he posed an immediate threat of harm to Officer Ventre. If those material
issues of fact are resolved in favor of Baker, then Baker could be found to be a nonfleeing, non-resisting suspect in a misdemeanor crime who did not pose an immediate
threat to anyone. As such, the relevant question is whether it was clearly established as
of February 14, 2011 that using a Taser on a misdemeanor suspect who had been
fleeing but who at the moment was not fleeing, not actively resisting arrest, and not
disobeying any commands, amounted to excessive force. The Court finds that under
those circumstances, the right to be free from excessive force has been clearly
established. See, e.g., Kijowski v. City of Niles, 372 F. App'x 595, 601 (6th Cir. 2010)
(quoting Wysong v. City of Heath, 260 F. App'x 848, 856 (6th Cir. 2008)) ("the right to
21
be free from physical force when one is not resisting the police is a clearly established
right."). 2 Accordingly, Officer Ventre is not entitled to qualified immunity at this stage of
the litigation, and summary judgment is denied to Officer Ventre on Baker's Section
1983 claim.
2. Whether the Section 1983 claim barred by Heck
Defendants contend that any claim that Baker may have for excessive force is
barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).
However, Defendants did not originally move for summary judgment on this ground and
it was not an issue raised by Plaintiffs in their response in opposition to summary
judgment. Instead, it was raised by Defendants for the first time in their reply brief.
"[A] reply brief is not the proper place to raise an issue for the first time." United
Tel. Co. v. Ameritech Servs., Inc., No. 2:10-cv-249, 2011 U.S. Dist. LEXIS 1746, at *10
n. 2 (S.D. Ohio Jan. 7, 2011); see also Tonguette v. Sun Life & Health Ins. Co. (U.S.),
No. 2:12-cv-00006, 2013 U.S. Dist. LEXIS 60716, at *11-12 (S.D. Ohio Apr. 29, 2013).
An issue raised for the first time in a reply brief has not been fully briefed, and thus, is
not appropriate for decision. See Tonguette, 2013 U.S. Dist. LEXIS 60716, at *11-12;
see also Versatile Helicopters v. City of Columbus, 879 F. Supp. 2d 775, 779-80 (S.D.
Ohio 2012) (abstaining from consideration of argument raised for the first time in a
summary judgment reply memorandum); Culy Constr. & Excavating, Inc. v. Laney
Directional Drilling Co., No. 2:12-cv-4, 2012 U.S. Dist. LEXIS 79575, at *10-11 (S.D.
Ohio June 8, 2012) (refraining from considering argument first raised in a reply
memorandum); Tolstih v. L.G. Elecs., U.S.A., Inc., No. 2:07-cv-582, 2009 U.S. Dist.
2
Baker does not argue that the right to be free from excessive force while in an elevated position
has been clearly established. Therefore, the Court will not consider that issue here.
22
LEXIS 98676, at *17-18 (S.D. Ohio Oct. 2, 2009) (refusing to consider an argument
improperly raised for the first time in a reply memorandum); Ferron v. Search Cactus,
L.L.C., No. 2:06-cv-327, 2007 U.S. Dist. LEXIS 44473, at *13 (S.D. Ohio June 19, 2007)
(rejecting an argument improperly raised for the first time in a reply memorandum).
Accordingly, the Court will not consider here Defendants' argument that the Section
1983 claim is barred by Heck.
B. State Law Claims Against Officer Ventre
Baker asserts state law claims of assault and battery against Officer Ventre.
Jones asserts a state law claim of negligent infliction of emotional distress against
Officer Ventre.
1. Assault and battery
Officer Ventre moves for summary judgment on the assault and battery claims on
the basis of immunity under Ohio Revised Code § 2744.03.
Subject to a few
exceptions, Ohio Revised Code § 2744.02(A)(1) provides that political subdivisions are
"not liable in damages in a civil action for injury, death, or loss to person or property
allegedly caused by an act or omission of the political subdivision or an employee of the
political subdivision in connection with a governmental or proprietary function." That
immunity is extended, with three exceptions, to employees of political subdivisions
under Ohio Revised Code § 2744.03(A)(6). Of relevance here is the second exception,
which provides that an employee is not immune from liability if his "acts or omissions
were with malicious purpose, in bad faith, or in a wanton or reckless manner." Ohio
Rev. Code § 2744.03(A)(6)(b); see also Rush v. City of Mansfield, 771 F. Supp. 2d 827,
876 (N.D. Ohio 2011). "Wanton misconduct" is the "failure to exercise any care toward
those to whom a duty of care is owed in circumstances in which there is great
23
probability that harm will result." Anderson v. Massillon, 134 Ohio St. 3d 380, 388,
(2012).
"Reckless conduct" is "characterized by the conscious disregard of or
indifference to a known or obvious risk of harm that is unreasonable under the
circumstances and is substantially greater than negligent conduct." Id.
The parties agree that the assault and battery claims against Officer Ventre "rise
and fall" with the excessive force claim. (Doc. 28, p. 19; Doc. 39, ¶ 23). The question is
whether Officer Ventre acted with a malicious purpose, in bad faith, or in a wanton or
reckless manner. Officer Ventre argues that his conduct could not have been malicious,
wanton, or reckless as is required to preclude immunity under Ohio Revised Code §
2744.03 because he did not use excessive force. In support, he relies on Hagans v.
Franklin County Sheriff's Office, 695 F.3d 505 (6th Cir. 2012), in which an officer was
entitled to statutory immunity under Ohio Revised Code § 2744.03(A)(6)(b) on an
assault and battery claim that was premised on a decedent dying after being tased by
the officer because the officer did not violate a clearly established right, and nothing
else showed that the officer otherwise acted with malicious purpose, in bad faith, or in a
wanton or reckless manner.
Unlike in Hagans, the Court has found that Officer Ventre is not entitled to
qualified immunity at this stage of the litigation on the excessive force claims brought
pursuant to 42 U.S.C. § 1983. Specifically, the Court has held that there are genuine
issues of material fact as to whether excessive force was used in this case and which
preclude a finding that the constitutional right was not clearly established.
Those
unresolved factual questions concern the demeanor of Baker at the time of the second
tasing. There also are unresolved factual issues relating to whether Officer Ventre
knew that Baker was standing on the top of a staircase at the time of that second tasing
24
and tased him anyway despite knowing and having received training on not tasing a
suspect who is at the top of the stairs because to do so can result in serious injury or
death. The manner in which those factual disputes are resolved will determine whether
Officer Ventre can be said to have acted wantonly or recklessly in this case. Therefore,
given that the Section 1983 claim survives summary judgment, Officer Ventre also is
denied summary judgment based on immunity under Ohio Revised Code §
27440.3(A)(6)(b) at this stage of the litigation with respect to Baker’s claims for assault
and battery.
2. Negligent infliction of emotional distress
Officer Ventre moves for summary judgment on Jones' claim for negligent
infliction of emotional distress on the ground that he is entitled to immunity under Ohio
Revised Code § 2744.03(A)(6)(b). Officer Ventre also contends in a cursory fashion
that Jones' claim for negligent infliction of emotional distress must fail because she has
not suffered serious emotional distress.
Jones responds that Officer Ventre would be entitled to immunity on Jones'
"negligent infliction of emotional distress claim . . . if Ventre's actions are found only to
be negligent." (Doc. 39, p. 23). However, Jones argues, "[g]iven that material facts are
in dispute on the Section 1983 claim and [that] those same facts would establish
recklessness and defeat 2744 immunity, summary judgment should be denied to Ventre
on Ms. Jones' state law claim." (Doc. 39, p. 23). Jones also responds that whether she
suffered serious emotional distress is a material fact for the jury to decide given that she
testified to the emotional impact she suffered at the time of the tasing. (Id.)
As mentioned above, an employee of a political subdivision is not immune from
liability if his "acts or omissions were with malicious purpose, in bad faith, or in a wanton
25
or reckless manner."
Ohio Rev. Code § 2744.03(A)(6)(b).
"Reckless conduct" is
"characterized by the conscious disregard of or indifference to a known or obvious risk
of harm that is unreasonable under the circumstances and is substantially greater than
negligent conduct." Anderson, 134 Ohio St. 3d at 388. An employee of a political
subdivision "is immune from liability for negligent acts or omissions." Anderson, 134
Ohio St. 3d at 386.
Here, Jones' claim for negligent infliction of emotional distress, by its very nature,
would impose liability for negligence, and not for recklessness, on Officer Ventre. To
allow Jones to maintain a tort claim "grounded in negligence [would be] inconsistent
with [Ohio Revised Code § 2744.03(A)(6)(b)], which requires a higher level of culpability
in order to remove the immunity of political subdivision employees." Piro v. Franklin
Twp., 102 Ohio App. 3d 130, 143, 656 N.E.2d 1035 (Summit App. 1995). As such, the
Court holds that Jones cannot maintain her claim for negligent infliction of emotional
distress because of the immunity provided to Officer Ventre under Ohio Revised Code §
2744.03(A)(6)(b). Summary judgment is therefore granted to Officer Ventre on Jones'
claim for negligent infliction of emotional distress. 3
Given the dismissal based upon immunity, the Court need not consider whether
there are genuine issues of material fact on whether Jones suffered serious emotional
distress.
C. Punitive Damages Against Officer Ventre
3
To apply the recklessness exception to employee immunity, Jones would have had to bring a
claim for intentional or reckless infliction of emotional distress against Officer Ventre, which would require
at least the same level of culpability as the immunity exception. Jones did not bring such a claim in the
Complaint nor has she argued in her response in opposition that the Court should apply the standards for
intentional or reckless infliction of emotional distress. Instead, she advocates only for a claim of negligent
infliction of emotional distress. As such, the Court will not consider her claim to be one for intentional or
reckless infliction of emotional distress.
26
Officer Ventre argues that punitive damages against him in his individual capacity
are not appropriate because Plaintiffs cannot establish the "actual malice" required in
Ohio for such an award. (Doc. 28, p. 20). Plaintiffs respond that punitive damages are
recoverable in a Section 1983 case because Ohio law recognizes recklessness as a
culpable state of mind to satisfy Ohio's "actual malice" standard. (Doc. 39, p. 23) (citing
Wright v. County of Franklin, 881 F. Supp. 2d 887 (S.D. Ohio 2012)). In the reply brief,
Officer Ventre argues in one sentence that Plaintiffs are not entitled to punitive damages
since, allegedly, they have not established an exception to immunity for which Officer
Ventre may be liable. (Doc. 44, p. 23).
Punitive damages are available under Section 1983 when a defendant's conduct
is proven to be motivated by "'evil motive or intent'" or when it involves "'reckless or
callous indifference to the federally protected rights of another.'" Wright, 881 F. Supp.
2d at 914 (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632
(1983)). Likewise, Ohio law governing punitive damages defines "actual malice" as "(1)
that state of mind under which a person's conduct is characterized by hatred, ill will or a
spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons
that has a great probability of causing substantial harm." Preston v. Murty, 32 Ohio St.
3d 334, 336, 512 N.E. 2d 1174 (1987) (emphasis added); see also Wright, 881 F. Supp.
2d at 914 (citing Preston, 32 Ohio St. at 336); Cabe v. Lunich, 70 Ohio St. 3d 598, 602,
640 N.E.2d 159 (1994); Kelley v. Buckley, 193 Ohio App. 3d 11, 37 950 N.E.2d 997
(2011). The second definition of "actual malice" permits punitive damages for a state of
mind equivalent to recklessness. See Preston, 32 Ohio St. 3d at 335 (explaining that
actual malice includes "extremely reckless behavior revealing a conscious disregard for
a great and obvious harm"); Wright, 881 F. Supp. 2d at 915 ("Ohio law recognizes
27
recklessness as a culpable state of mind sufficient to satisfy the 'actual malice' standard
for punitive damages.") (citing Villella v. Waikem Motors, 45 Ohio St. 3d 36, 37, 543
N.E.2d 464 (1989), modified on other grounds by Moskovitz v. Mt. Sinai Medical Ctr..,
69 Ohio St. 3d 638, 1994 Ohio 324, 635 N.E.2d 331 (1994)).
Baker has presented at least a genuine issue of material fact as to whether
Officer Ventre acted recklessly. Baker's claim under Section 1983 requires a finding of
unreasonableness, which is a standard that may encompass facts sufficient to prove
recklessness. Likewise, Baker's assault and battery claims require a finding of at least
recklessness. For the reasons previously explained, the Court has found that there are
genuine issues of material fact that preclude summary judgment on each of those
claims. If those genuine issues of material fact are construed in favor of Baker, then a
reasonable jury could find that Officer Ventre acted recklessly when tasing Baker on the
second occasion with knowledge that his conduct had a high probability of causing
substantial harm or injury. Accordingly, the same facts that this Court found to create
genuine issues of material fact on Baker's Section 1983 claim and his assault and
battery claims also create genuine issues of material fact for trial on the prayer for
punitive damages. Officer Ventre is therefore denied summary judgment on the issue of
punitive damages.
D. Claims Against Union Township
Baker contends that Union Township is liable under 42 U.S.C. § 1983 for his
injuries. See Monnell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978). Defendants move for summary judgment on that claim.
(Doc. 28, pp. 17-18).
Where, as here, a Section 1983 claim is made against a
28
municipality, 4 the Court must engage in a two-prong analysis: (1) whether the plaintiff's
harm was caused by a constitutional violation; and (2) if so, whether the municipality is
responsible for that violation. Collins v. City of Harker Heights, 503 U.S. 115, 120, 112
S. Ct. 1061; 117 L. Ed. 2d 261 (1992); see also Cash v. Hamilton Cnty. Dep't of Adult
Prob., 388 F.3d 539, 542 (6th Cir. 2004).
1. Constitutional violation
"A finding that a constitutional violation occurred is required to deny [individual]
defendants qualified immunity and to state a claim of municipal liability." Estate of
Smithers v. City of Flint, 602 F.2d 758, 767 n. 9 (citing Watkins v. City of Battle Creek,
273 F.3d 682, 687 (6th Cir. 2001)) (internal citation omitted).
"If no constitutional
violation by the individual defendants is established, the municipal defendants cannot
be held liable under § 1983." Watkins, 273 F.3d at 687; see also Wilson v. Morgan, 477
F.3d 326, 337 (6th Cir. 2007).
As previously explained, there are genuine issues of material fact that exist in the
present case which preclude a finding at this time that there was no constitutional
violation by Officer Ventre. If those genuine issues of material fact are resolved in favor
of Baker, then the first prong of municipal liability will be established against Union
Township. It thus is not appropriate to dismiss the Section 1983 claim against Union
Township at this time for lack of a constitutional violation. Therefore, the Court will turn
to the second prong of the test for municipal liability.
2. Whether Union Township is responsible for the violation
4
Federal caselaw indicates that "municipal liability" includes not only municipalities, but also
other political subdivisions such as counties and townships. See Peabody v. Perry Twp., No. 2:19-cv1078, 2013 U.S. Dist. LEXIS 46344, at *19 n. 1 (S.D. Ohio Mar. 29, 2013).
29
As for the second prong, municipalities and other bodies of local government
may be sued pursuant to 42 U.S.C. § 1983 if they are "'alleged to have caused a
constitutional tort through a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body's officers.'" Cash, 388 F.3d at 542 (quoting City
of St. Louis v. Praprotnik, 485 U.S. 112, 121, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988))
(internal quotations omitted).
Section 1983 also "'authorizes suit for constitutional
deprivations visited pursuant to governmental "custom" even though such a custom has
not received formal approval through the body's official decisionmaking channels.'" Id.
at 542-43 (quoting Praprotnik, 485 U.S. at 121) (internal quotations omitted). Although
a Section 1983 plaintiff might not be able to demonstrate that a written policy exists, he
or she "'may be able to prove the existence of a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law.'" Id. (quoting Monell, 436 U.S.
at 691) (citation and quotation marks omitted).
In this case, Baker appears to be alleging three bases for liability against Union
Township, which are: (1) Union Township Police Department's General Orders PM 602 Response to Resistance Policy ("Response to Resistance Policy"); (2) Union
Township's alleged failure to train on the constitutional uses of a Taser; and (3) Union
Township's ratification of Baker's conduct. The Court will address each basis below.
a. Response to Resistance Policy Relating to Taser Use
A plaintiff asserting a Section 1983 claim on the basis of a municipal custom or
policy must "'identify the policy, connect the policy to the [Township] itself and show that
the particular injury was incurred because of the execution of that policy.'" Graham v.
County of Washtenaw, 358 F.3d 377, 383 (6th Cir. 2004) (quoting Garner v. Memphis
30
Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993), cert. denied, 510 U.S. 1177, 127 L. Ed. 2d
565, 114 S. Ct. 1219 (1994)). Here, Baker's claim is based upon a particular provision
of the Response to Resistance Policy. (Doc. 27-2, p. 8). Union Township does not
dispute that the Response to Resistance Policy constitutes a policy of the Union
Township Police Department.
The primary issue here is whether Baker has set forth sufficient facts to establish
that the alleged constitutional violation happened "because of" the execution of the
Response to Resistance Policy. There must be "a direct causal link" between the policy
and the alleged constitutional violation such that Union Township's "deliberate conduct"
can be deemed the "moving force" behind the violation. Graham, 358 F.3d at 383
(citing Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir. 2001) (citing Bd. of
Cnty. Comm'rs v. Brown, 520 U.S. 397, 404, 137 L. Ed. 2d 626, 117 S. Ct. 1382
(1997)). "These stringent standards are 'necessary to avoid de facto respondeat
superior liability explicitly prohibited by Monell.'" Graham, 358 F.3d at 383 (quoting Doe
v. Claiborne Cnty., 103 F.3d 495, 508 (6th Cir. 1996)). Applying these standards, the
Court concludes that Baker has failed to establish the requisite causal link between the
Response to Resistance Policy and the alleged constitutional violation.
Baker contends that "Union Township's policy and training authorized excessive
force in violation of the law because Union Township allowed an officer to use force
without first balancing the risk to the government's interest in seizing a non-violent, nonfleeing, non-resisting suspect." (Doc. 39, p. 17). Baker specifically cites to Section XII
of the Response to Resistance Policy, which he contends "permit[s] officers to tase a
non-resisting, non-fleeing, non-violent suspect for disobeying a command." (Doc. 39, p.
19; see also Doc. 27-2, p. 8). Baker further contends that "if the jury finds that Baker
31
was not resisting and not fleeing and that Officer Ventre nonetheless tased him, a jury
could find that the Township failed to have policies and training in place to prevent
[O]fficer Ventre from using excessive force." (Doc. 39, p. 19).
There are several flaws in Baker's argument that preclude a finding of liability
based on Union Township's Response to Resistance Policy. First, contrary to Baker's
contentions, the Response to Resistance Policy does not authorize use of force without
consideration of the circumstances. Section XXII of that policy provides that a Taser
"may be used when it reasonably appears that it will be the most effective non-lethal
response to resistance option, balancing the need to arrest or subdue the person; the
likelihood of injury to the person, to innocent bystanders, or law enforcement officers;
and officer safety concerns . . . [and] [i]n all cases, the totality of the circumstances at
the time will be considered when establishing whether use of a defensive weapon was
an appropriate response to resistance." (Doc. 27-2, p. 8) (emphasis added). While the
policy may not expressly address the specific circumstances in this case, it does
provide necessary discretion to an officer to make critical decisions in rapidly evolving
situations. As such, Baker's first argument does not hold up upon closer scrutiny.
Second, Baker has not demonstrated that the execution of that particular policy
directly caused the alleged constitutional violation. To the extent that Baker intends to
argue that the specific policies that permit tasing an individual who disobeys commands
or who is passively resisting are on their face unconstitutional because they allow tasing
of misdemeanant suspects who were not fleeing or actively resisting, the Court finds the
argument unpersuasive. As addressed above with respect to the Section 1983 claim
against Officer Ventre, there is not a clearly established constitutional right not to be
tased when directly disobeying a command even when the alleged crime is a
32
misdemeanor. See Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 508-09 (6th
Cir. 2012) (citing relevant caselaw); Cockrell v. City of Cincinnati, 498 F. App'x 491,
495-96 (6th Cir. 2012) (citing relevant caselaw).
Nor is there a clearly established
constitutional right not to be tased when offering passive resistance. See Hagans, 695
F.3d at 508-09; Cockrell, 498 F. App'x at 495-96.
Rather, the caselaw provides a
clearly established constitutional right not to be tased when the suspect has done
nothing to resist, is already detained, offers no resistance, or is compliant. See Hagans,
695 F.3d at 508-09; Cockrell, 498 F. App'x at 495-96. Baker does not complain that the
Response to Resistance Policy permits tasing in any of the latter circumstances where
a clear constitutional right has been established or that those policies were the moving
force behind the alleged constitutional violations in this case.
Baker also appears to argue that the causal link is established based on the
following logic: the Response to Resistance Policy existed, that policy permitted tasing
of a suspect disobeying a command or passively resisting, Officer Ventre generally
followed Union Township's Response to Resistance policies, 5 Officer Ventre may have
used excessive force in this case, and if he used excessive force, then the policies on
which he was trained obviously were inadequate to prevent excessive force. That logic,
however, is insufficient to demonstrate that the Response to Resistance Policy was the
moving force behind the alleged constitutional violation. Instead of identifying how the
particular policy directly caused the violation, Baker attempts to show that an alleged
constitutional violation demonstrates that the particular policy must be inadequate.
However, if the Court followed Baker's logic, then any time excessive force is found, the
5
Notably, the portions of Officer Ventre’s transcript relied upon by Baker do not indicate that
Officer Ventre followed the particular policy to which Baker cites in deciding to deploy his Taser in this
case. (See Doc. 27, pp. 40, 69) (explaining that the policy permits tasing for passive resistance, for
passive resistance after disobeying a command, and for fleeing suspects).
33
plaintiff could attribute the excessive force back to the policies of the police department
being inadequate, even if factors other than the policy (e.g., an individual officer's
personal vendetta) were the moving force behind the alleged constitutional violation.
Such a result does not comport with the stringent standards for municipal liability
because it leads to de facto respondeat superior liability, which is explicitly prohibited by
Monnell. Accordingly, Baker has not presented any genuine issues of material fact as
to whether Union Township's Response to Resistance Policy was the moving force
behind the alleged constitutional violation, and therefore, summary judgment is granted
to Union Township on Baker's claim for municipal liability under Section 1983 based
upon that written policy.
b. Training
However, it is not only written policies that are actionable under Section 1983.
The Supreme Court has held that inadequacy of police training also may serve as a
basis for Section 1983 municipal liability but only where the failure to train amounts to
deliberate indifference to the rights of persons with whom police come into contact, i.e.,
deliberate indifference to injuries that are likely to result from a failure to train. City of
Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197; 103 L. Ed. 2d 412 (1989); see
also Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005). There are at least two types
of situations that have been found to justify a finding of deliberate indifference in failure
to train police officers: (1) the failure to provide adequate training in light of foreseeable
consequences that could result from a lack of instruction; and (2) the city's failure to act
in response to repeated complaints of constitutional violations by its officers. Brown v.
Shaner, 172 F.3d 927, 931 (6th Cir. 1999) (citing Canton, 489 U.S at 390).
34
The
Supreme Court recently explained the "tenuous" nature of a § 1983 claim that "turns on
a failure to train":
In limited circumstances, a local government's decision not to train
certain employees about their legal duty to avoid violating citizens'
rights may rise to the level of an official government policy for
purposes of § 1983. A municipality's culpability for a deprivation of
rights is at its most tenuous where a claim turns on a failure to train.
See Oklahoma City v. Tuttle, 471 U.S. 808, 822-823, 105 S. Ct.
2427, 85 L. Ed. 2d 791 (1985) (plurality opinion) ("[A] 'policy' of
'inadequate training'" is "far more nebulous, and a good deal further
removed from the constitutional violation, than was the policy in
Monell"). To satisfy the statute, a municipality's failure to train its
employees in a relevant respect must amount to "deliberate
indifference to the rights of persons with whom the [untrained
employees] come into contact." Canton, 489 U.S., at 388. Only then
"can such a shortcoming be properly thought of as a city 'policy or
custom' that is actionable under § 1983." Id., at 389.
"'[D]eliberate indifference' is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious
consequence of his action." [Bd. of Comm'rs of] Bryan C[n]ty. [v.
Brown,] 520 U.S. [397, 410, 117 S. Ct. 1382, 137 L. Ed. 2d 626
[(1997)]. Thus, when city policymakers are on actual or constructive
notice that a particular omission in their training program causes city
employees to violate citizens' constitutional rights, the city may be
deemed deliberately indifferent if the policymakers choose to retain
that program. Id. at 407. The city's "policy of inaction" in light of
notice that its program will cause constitutional violations "is the
functional equivalent of a decision by the city itself to violate the
Constitution." Canton, 489 U.S., at 395 (O'Connor, J., concurring in
part and dissenting in part). A less stringent standard of fault for a
failure-to-train claim "would result in de facto respondeat superior
liability on municipalities . . . ." Id., at 392; see also Pembaur [v. City
of Cincinnati, 475 U.S. 469], 483, [106 S. Ct. 1292, 89 L. Ed. 2d 452
(1986)] (opinion of Brennan, J.) ("[M]unicipal liability under § 1983
attaches where--and only where--a deliberate choice to follow a
course of action is made from among various alternatives by [the
relevant] officials . . . .").
Connick v. Thompson, __ U.S. __, 131 S. Ct. 1350, 1359-60, 179 L. Ed. 2d 417 (2011).
The Supreme Court went on to explain the type of evidence necessary to establish that
35
a municipality was deliberately indifferent to the rights of persons with whom the
untrained employees come into contact:
A pattern of similar constitutional violations by untrained employees
is "ordinarily necessary" to demonstrate deliberate indifference for
purposes of failure to train. Bryan Cty., 520 U.S., at 409.
Policymakers' "continued adherence to an approach that they know
or should know has failed to prevent tortious conduct by employees
may establish the conscious disregard for the consequences of their
action--the 'deliberate indifference'--necessary to trigger municipal
liability." Id., at 407. Without notice that a course of training is
deficient in a particular respect, decisionmakers can hardly be said to
have deliberately chosen a training program that will cause violations
of constitutional rights.
Id. at 1360 (parallel citations omitted).
In the instant action, Baker does not support his claim with evidence of a pattern
of similar alleged constitutional violations. Although Baker mentions in the "ratification"
section of his argument that Union Township has never found excessive force or
disciplined an officer for use of excessive force, he has not shown deliberate
indifference by Union Township because that evidence does not show that were any,
much less repeated, complaints or concerns about the use of excessive force by Union
Township officers.
Instead, Baker relies on "single-incident" liability to support his claim based on
inadequate training. That type of liability attaches only when the alleged constitutional
violation was the "obvious" consequence of failing to provide specific training. Connick,
131 S. Ct. at 1361. That showing of "obviousness" can substitute for the pattern of
violations ordinarily necessary to establish municipal culpability. Id. In Canton, 489
U.S. 390, the Court posed the hypothetical example of a city that arms its police force
with firearms and deploys the armed officers into the public to capture fleeing felons
without training the officers in the constitutional limitation on the use of deadly force."
36
Id. (citing Canton, 489 U.S. at 390, n. 10). "Given the known frequency with which
police attempt to arrest fleeing felons and the 'predictability that an officer lacking
specific tools to handle that situation will violate citizens' rights,' the Court theorized that
a city's decision not to train the officers about constitutional limits on the use of deadly
force could reflect the city's deliberate indifference to the 'highly predictable
consequence,' namely, violations of constitutional rights." Id. (citing Bryan Cnty., 520
U.S. at 409; Canton, 489 U.S. at 390 n. 10).
This case is not that rare case where the alleged failure to train was so patently
obvious that Union Township would be liable under Section 1983 without proof of a preexisting pattern of violations. Unlike in the Canton hypothetical, Baker admits that
Officer Ventre was trained on Taser use and that Union Township had policies that
included guidelines on when the use of a Taser was permissible. (Doc. 39, p. 19).
Baker also has dropped his claim for failure to train on the use of Tasers on elevated
surfaces. (Doc. 39, p. 17 n. 4). Instead, Baker appears to contend only that the lack of
sufficient training is evident if Officer Ventre is found to have used excessive force. The
Court disagrees with that logic. While such a finding may show that the execution of the
policy was improper, it does nothing to explain what training was or was not provided to
officers or how that training was so obviously inadequate it could not have prevented
the constitutional violations in this case. Certainly, it does not demonstrate that Union
Township acted with deliberate indifference in regards to its training.
To the extent that Baker is contending that the policy is unconstitutional on its
face such that training on that policy obviously would lead to the use of excessive force,
the Court concludes that for the reasons previously explained in relation to the
Response to Resistance Policy (supra, pp. 32-33) that the policy was not on its face
37
unconstitutional. As such, any training in accordance with that policy does not plainly
reflect deliberate indifference to the "highly predictable consequence" of the violation of
constitutional rights.
For the foregoing reasons, summary judgment is granted in favor of Union
Township on Baker's claim for municipality liability under Section 1983 based on a
failure to train.
c. Ratification
A municipality is not liable for the conduct of its non-policymaking employees
who act contrary to the policies of the municipality. Turner v. City of Taylor, 412 F.3d
629, 646 (6th Cir. 2005). A municipality, however, may be liable for the unconstitutional
decision of its non-policymaking employees if it ratifies those decisions. Praprotnik, 485
U.S. at 127. There are two methods of ratification that are relevant in this case.
The first method of ratification occurs when an individual with policymaking
authority issues a final decision affirming a subordinate's decision on the merits or
otherwise, and thereby adopting it as municipal policy. Id.; see also Meyers v. City of
Cincinnati, 14 F.3d 1115, 1118-19 (6th Cir. 1994). However, even if the municipality
ratified the decision, the plaintiff still would have to prove that the ratification was a
"moving force" in causing the constitutional violation. Feliciano v. City of Cleveland, 988
F.2d 649, 656 (6th Cir. 1993) (citing Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991));
see also Peabody v. Perry Twp., No. 2:10-cv-1078, 2013 U.S. Dist. LEXIS 46344, at *36
(S.D. Ohio Mar. 29, 2013). A "single, isolated decision" by a policymaker is insufficient
to demonstrate that a decision was the moving force behind a constitutional violation.
Williams, 936 F.2d at 884-85. Instead, for ratification by a policymaker's final approval
to be the "moving force" behind a constitutional violation, the plaintiff must show that
38
there was a history or pattern of unconstitutional decision-making by the policymakers.
Id. (finding that a policymaker's ratification of the employee's conduct was not the
moving force behind a constitutional violation because"[t]here was no history that the
policy had been repeatedly or even sporadically misapplied by school officials in the
past").
Here, Baker has set forth testimony from Chief Zinser that indicates that Chief
Zinser, as a final policymaker, issued a final decision in which he found Officer Ventre's
conduct complied with Union Township's policies on use of force. (See Doc. 25, pp. 19,
32). However, Baker has not demonstrated that the ratification was the "moving force"
behind the alleged constitutional violation. The only argument set forth by Baker on this
issue is that Union Township has never found excessive force or disciplined an officer
for his use of force. That evidence, however, does not show any repeated, or even
sporadic, misapplication of any portion of the Response to Resistance Policy by Union
Township's policymakers.
Absent evidence of circumstances from which the Court
could reasonably infer prior misapplications of the policy, the Court cannot conclude that
the ratification of Officer Ventre's conduct was the "moving force" behind the alleged
constitutional violation.
Thus, Baker has failed to show that Union Township can be
liable pursuant to the first ratification theory, and summary judgment is granted to Union
Township on Baker's claim for municipal liability under Section 1983 based upon that
ratification theory.
However, the second method of ratification under which Union Township may be
liable occurs when a policymaker fails to meaningfully investigate the acts of the officer.
See Wright v. City of Canton, 138 F. Supp. 2d 955, 966 (N.D. Ohio 2001); Leach v.
Shelby Cnty. Sheriff, 891 F.2d 1241, 1246-48 (6th Cir. 1989); Marchese v. Lucas, 758
39
F.2d 181, 188 (6th Cir. 1985). "[E]vidence that a municipality inadequately investigated
an alleged constitutional violation can be seen as evidence of a policy that would
condone the conduct at issue." Otero v. Wood, 316 F. Supp. 2d 612, 627-28 (S.D. Ohio
2004); see also Peabody, 2013 U.S. Dist. LEXIS 46344, at *37 (relying on Otero).
A municipality fails to meaningfully investigate when it does not conduct any
investigation into the alleged unconstitutional conduct. See Leach, 891 F.2d at 1246-48
(county sheriff's failure to investigate his employees' failure to provide for the medical
needs of a paraplegic inmate was sufficient to demonstrate ratification of the
unconstitutional acts such that municipal liability attached); Marchese, 758 F.2d at 188
(county sheriff's failure to investigate his deputies' beating of an inmate constituted
ratification of the deputies' unconstitutional acts).
A municipality also may fail to
meaningfully investigate when the evidence shows that "the investigation was not
designed to discover what actually happened[.]" Wright, 138 F. Supp. 2d at 966. In
Wright, the district court found that a reasonable juror could conclude that the city police
chief's approval of the investigation meant that the city ratified the alleged use of
excessive force because the plaintiff offered "evidence showing the investigation was
not designed to discover what actually happened to Wright while in [the officers']
custody." 138 F. Supp. 2d at 966. In rendering its decision, the district court noted:
Most notably, Captain Myers never interviewed Dr. Hamrick as part
of his internal affairs investigation. Myers never discussed Wright's
injuries with Dr. Hamrick. Nor did he inquire as to [the officers']
behavior the night of the incident. Thus, Myers concluded his
investigation without knowing that Dr. Hamrick (1) insists [the
officers] gave three different stories as to how Wright suffered his
injuries and (2) believes Wright was not injured as a result of a single
takedown.
Id. at 966-67.
40
However, a municipality does meaningfully investigate when multiple steps were
taken to ensure that an accurate account of the incident is received and that a thorough
and objective evaluation of the circumstances involved has occurred prior to a final
decision being rendered on the incident. See Peabody, 2013 U.S. Dist. LEXIS 46344,
at *40-41. For example, in Peabody, an officer tased a theft suspect who was climbing
a fence. Id. at *3-4. The Chief undertook an investigation and determined that the
officer had complied with its Use of Force policy. Id. at *7. Following the incident, the
township was sued under Section 1983 for, among other things, ratifying the alleged
unconstitutional conduct of the officer. Id. at *39-41. In considering whether the Chief's
investigation was so inadequate as to constitute ratification of unconstitutional conduct,
the district court noted:
Chief Oppenheimer spent several hours reviewing the incident
reports, watched the cruiser video thirty to forty times and spoke with
the Township attorneys regarding Officer Bean's actions. The Chief
focused his investigation on trying to determine when Officer Bean
pulled the trigger, thereby deploying his taser toward Hook. Chief
Oppenheimer spoke to other police chiefs regarding the event as
part of his review. Additionally, Chief Oppenheimer interviewed
Officer Bean regarding his account of the incident at issue. He also
referred the matter to Lieutenant Robert Pendleton for an objective
review of this incident. Lieutenant Pendleton authored a "Use of
Force Investigation Report."
Id. at *40-41 (internal citations omitted). Based on those facts, the district court held
that "[e]ven when viewing the evidence in the light most favorable to Plaintiffs, and
drawing all justifiable inferences in their favor" that "no reasonable jury could find that
the investigation into Officer Bean's taking of Hook was so inadequate as to constitute a
ratification of his alleged use of excessive force that is sufficient to support § 1983
liability." Id. at *41.
41
In the present case, the Court finds that, although it is a close call, genuine
issues of material fact exist as to whether Union Township conducted a meaningful
investigation. There is no dispute that Chief Zinser was a final policymaker for Union
Township. (See Doc. 25, p. 21) (Zinser testified that he is the final decision maker on
the policies and the final implementer of the policies). Chief Zinser's investigation of the
case included a review of Officer Ventre's use of force, the incident report, use of force
reports, summary of witness interviews, Taser download report, and photographs.
(Doc. 25, pp. 23-25, 32). There is also evidence that Chief Zinser consulted with two
individuals on his staff, Lieutenant Gavilglia and Sergeant Mills, before coming to a
decision with respect to the incident.
(Doc. 25, pp. 8-10).
Chief Zinser did not,
however, interview Officer Ventre to confirm his account of the incident or interview
Officer Ventre's partner, Officer Smith, regarding her account of the incident. (Doc. 25,
pp. 8-9). There also is not evidence presented that an interview was conducted with
Baker or Jones, who both had accounts of the incident that differed from the written
account of the incident provided by Officer Ventre. (Doc. 25, pp. 26, 47-48). Moreover,
the Court has not been directed to any evidence showing whether or to what extent
attempts were made to confirm that the locations of the Taser hits on Baker comported
with Officer Ventre's written account of the incident. Based on this evidence, or lack
thereof, a reasonable jury might conclude such actions show Union Township ratified
Officer Ventre's actions without conducting a meaningful investigation. Accordingly, the
Court denies summary judgment to Union Township on Baker's claim against Union
Township for municipal liability under Section 1983 based upon ratification of Officer
Ventre's conduct through a failure to conduct a meaningful investigation.
IV.
CONCLUSION
42
For the foregoing reasons, Defendants' Motion for Summary Judgment (Doc. 28)
is GRANTED IN PART and DENIED IN PART. Specifically, it is ORDERED that:
1. Summary judgment is GRANTED as to:
a. Jones' claim for negligent infliction of emotional distress against Officer
Ventre; and
b. Baker's Section 1983 claim for municipal liability against Union
Township based on the Response to Resistance Policy, an alleged
failure to train, and Union Township's alleged ratification of Officer
Ventre's conduct being the moving force behind the alleged
constitutional violation.
2. Summary judgment is DENIED as to:
a. Baker's Section 1983 claim against Officer Ventre;
b. Baker's assault and battery claims against Officer Ventre;
c. The issue of punitive damages; and
d. Baker's Section 1983 claim for municipal liability against Union based
on ratification of Officer Ventre's conduct by failing to meaningfully
investigate the February 14, 2011 incident.
IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court
43
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