Surface et al v. Conklin et al
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 24 ). Signed by Judge Timothy S. Black on 3/20/17. (eh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
JEFFREY P. SURFACE, et al.,
OFFICER SCOTT CONKLIN, et al.,
Case No. 1:15-cv-40
Judge Timothy S. Black
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Doc. 24)
This civil action is before the Court on Defendant Officer Scott Conklin’s motion
for summary judgment (Doc. 24) and the parties’ responsive memoranda (Docs. 28, 31).
Plaintiffs Jeffrey Surface and Laura Pavlech filed this lawsuit on behalf of their
twenty three year old son, Caleb Surface. On January 18, 2014, Caleb was shot and
killed by Fairfield Police Officer, Scott Conklin, after the Plaintiff-father, Jeffrey Surface,
called 911, reporting that Caleb was out of control and that they needed to get him out of
his house. Caleb fled from the back door when Officer Todd Adamson arrived at the
Surface residence. Officer Conklin was dispatched to assist with setting up a perimeter.
Officer Conklin spotted Caleb and followed him on foot. The encounter culminated in
Officer Conklin’s discharge of his firearm two times, resulting in the death of Caleb
Plaintiffs are the parents of decedent Caleb Surface. They now assert federal
claims pursuant to 42 U.S.C. § 1983 for excessive force, and state law claims for
wrongful death, assault and battery, intentional infliction of emotional distress, and
negligent infliction of emotional distress.
Defendant Officer Conklin has moved for summary judgment on the basis that he
is entitled to qualified immunity, and that there is no genuine issue of material fact that
the force exercised by Conklin was reasonable. For the reasons discussed more fully
below, the Court denies Defendant’s motion.
UNDISPUTED FACTS 1
On the evening of January 18, 2014, Jeffrey Surface called 911 and informed the
City of Fairfield Police Department dispatch that they needed to “get here quick”
because he almost had to shoot his son. (Doc. 24-1, Ex. 3).
Jeffrey Surface told dispatch that Caleb had ripped out his window screen and was
“getting out of control and is nuts and I need to get him removed from my house.”
(Doc. 24-1, Ex. 3).
Jeffrey Surface provided the dispatcher with his son’s name and his name, and
reiterated that Caleb was inside the home, he had asked him to leave, and he
refused to leave. (Doc. 24-1, Ex. 3).
Dispatch asked Jeffrey Surface if he knew if Caleb was on alcohol or drugs, and
he responded “yeah…yeah probably.” (Doc. 24-1, Ex. 3).
Jeffrey Surface stated to dispatch, “He’s in his room, he’s trying to open the door,
grab a knife or something, I almost had to shoot him.” He further stated, “you
need to send somebody over here now.” (Doc. 24-1, Ex. 3).
Jeffrey Surface told 911 dispatch that he (Jeffrey Surface) was in possession of a
firearm. (Doc. 24-1, Ex. 3).
Docs. 25, 29, 30.
Dispatch requested officers to respond to the residence, stating that “23 year old
son Caleb Surface is at the residence refusing to leave, believe he is on something
either drugs or alcohol.” (Doc. 24-1, Ex. 1).
Officer Todd Adamson responded and indicated that he would pick it up. (Doc.
24-1, Ex. 1).
Dispatch advised over radio to units en route to the residence that Caleb was in his
room, tried to open a drawer to pull out a knife, that the caller had advised
dispatch that he almost had to shoot him, that the caller had a firearm on him, and
that the caller had walked away from the phone. (Doc. 24-1, Ex. 1).
Dispatch advised over radio that Caleb had an active warrant for contempt of court
with an original charge of theft. (Doc. 24-1, Ex. 1).
Following dissemination of such information, dispatch received a call from Jeffrey
Surface’s girlfriend, Donna Riley, who was located in a Toyota Rav 4 that was
running in the driveway of the residence. (Doc. 24-1, Ex. 4).
Riley indicated that she went out to her Rav 4 because they were “going at it.”
(Doc. 24-1, Ex. 4).
Thereafter, dispatch stated on the radio that they no longer had contact with
Jeffrey Surface inside the home, that Ms. Riley had called and indicated that she
was seated in a Rav 4 in the driveway, and that in relation to Jeffrey Surface, it
was “unknown if he has the firearm still on him.” (Doc. 24-1, Ex. 1).
Upon Adamson’s arrival at the residence he advised over radio to Officer Conklin
and others that Caleb ran out the back door. (Doc. 24-1, Ex. 1).
Officer Adamson asked if a K-9 was available. He was then asked if there were
any additional charges, and he replied, domestic violence. (Doc. 24-1, Ex. 1).
Radio traffic then indicates that Sergeant Don Garrett requested officers to set up a
perimeter. (Doc. 24-1, Ex. 1).
Upon learning that Caleb exited the back door, Office Conklin was dispatched to
assist with setting up a perimeter for the fleeing suspect. (Doc. 24-1, Ex. 1).
Officer Conklin was dispatched to park at the dead end of Polo Woods Court.
(Doc. 24-1, Ex. 1).
Jeffrey Surface showed Officer Adamson that he was in possession of his firearm
upon Officer Adamson’s entrance into the Spy Glass Hill Court residence, after
Caleb Surface had exited through the back door of the residence. (Doc. 28-4).
Jeffrey Surface told Officer Adamson that Caleb might be suicidal. (Doc. 28-4).
In describing Caleb over dispatch, Officer Adamson stated that Caleb was
“possibly suicidal”, and further stated that Caleb asked to be shot and attempted to
cut his wrists. (Doc. 24-1, Ex. 1).
After establishing a perimeter and parking his vehicle at Polo Woods Court,
Conklin observed movement behind the homes located thereon. (Doc. 24-1,
Officer Conklin was advised that Caleb approached the homes of at least two
residences in the Polo Woods Court area and tried to enter the homes. 2 (Doc. 24-1,
Ex. 2, Docs. 28-2, 28-3).
Officer Conklin stated to dispatch, “I believe I just saw him go behind a house.
I’m going to see if I can catch up with him.” (Doc. 24-1, Ex. 2).
Officer Conklin continued to follow Caleb through the back yards of Polo Woods
Court. (Doc. 24-1).
Officer Conklin discharged his firearm two times, shooting and killing Caleb at
approximately 8:25 p.m. on January 18, 2014. (Doc. 24-1, Ex. 2).
Upon Officer Adamson’s arrival, Officers Conklin and Adamson searched Caleb’s
pockets. At that time, it was determined that Caleb had a cordless phone in his
jacket pocket. (Doc. 24-1).
The events at issue occurred on a snowy evening, on January 18, 2014 from 7:57
p.m. until approximately 8:25 p.m. (Doc. 24-1, Ex. 1, 2; Doc. 28-1).
The parties dispute whether Caleb attempted to and/or did enter any homes without consent or
permission. Plaintiffs contend that Caleb only asked to use the telephone at each residence, and was
denied by the owners. It is undisputed, however, that dispatch stated over the radio that a resident called
police indicating that Caleb came to the door asking to come inside. (Doc. 24-1, Ex. 2).
STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to
the Court demonstrates that there is no genuine issue as to any material fact, and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party has the burden of showing the absence of genuine
disputes over facts which, under the substantive law governing the issue, might affect the
outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be
construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (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.” Id. 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
[non-movant'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).
Defendant Officer Conklin asserts that he is entitled to qualified immunity because
he was engaged in a discretionary function and his conduct did not violate a clearly
established statutory or constitutional right.
Qualified immunity protects officers from liability for mistakes of law and fact.
Chappell v. City of Cleveland, 585 F.3d 901, 916 (6th Cir.2009). The defense of
qualified immunity completely protects government officials performing discretionary
functions from Section 1983 actions unless their conduct violates “clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982). A right is “clearly established if [a]
reasonable official would understand that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 640 (1987). Therefore, Officer Conklin is entitled to
qualified immunity if a reasonable officer would have believed that the shooting was
lawful, “in light of clearly established law and the information [Officer Conklin]
possessed.” Bell v. City of East Cleveland, 1997 WL 640116, at *2 (6th Cir. 1997), citing
Anderson, 483 U.S. at 641.
Qualified immunity ordinarily applies unless it is obvious that no reasonably
competent official would have concluded that the actions taken were unlawful. Bell, 1997
WL 640116, at *3, 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.’” Hunter v. Bryant,
502 U.S. 224, 229 (1991), quoting Malley v. Briggs, 475 U.S. 335, 343(1986).
“Qualified immunity is ‘an entitlement not to stand trial or face the other burdens
of litigation.’” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is “an
immunity from suit rather than a mere defense to liability; and like an absolute immunity,
it is effectively lost if a case is erroneously permitted to go to trial.” Id. at 526. As a
result, the court must resolve qualified immunity questions as the earliest possible stage
in litigation. Hunter, 502 U.S. at 227.
The plaintiff bears the burden of showing that defendants are not entitled to
qualified immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir.2005). There
is generally a two-step analysis to determine whether a police officer is entitled to
qualified immunity. Thacker v. Lawrence County, 182 F. App’x 464, 468–69 (6th Cir.
2006) (citing Estate of Carter v. City of Detroit, 408 F.3d 305, 310–11 (6th Cir. 2005).
The first step asks whether the police officer violated a constitutional right. Bell, 1997
WL 640116, at *3. The second step determines whether the right was clearly established
in a “particularized sense,” such that a reasonable officer confronted with the same
situation would have known that using deadly force would violate that right. Id. The
court has discretion to decide which of the two elements to address first. Id., citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Defendant Officer Conklin contends that he did not violate any constitutional
right, citing the “objective reasonableness” standard set forth in Graham v. Connor, 490
U.S. 386 (1989). In analyzing claims of excessive force, three factors must be considered
to determine the reasonableness of the force: (1) the severity of the crime; (2) whether
the suspect posed an immediate threat to the officers or others; and (3) whether the
suspect was actively resisting arrest or attempting to evade arrest by flight. Id. at 396.
Further, the “reasonableness” of a particular use of force is objective and “must be
judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. It is not for the Court to substitute its own notion of the
“proper police procedure for the instantaneous decision of the officer at the scene.” Boyd
v. Baeppler, 215 F.3d 594, 602 (6th Cir. 2000). “The calculus of reasonableness must
embody allowance for the fact police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397. An
officer may use deadly force where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or others. Hocker v.
Pikeville City Police Dep't, 738 F.3d 150, 154 (6th Cir. 2013); Tennessee v. Garner, 471
U.S. 1, 11(1985).
In assessing Plaintiffs’ excessive-force claim, this Court must construe all factual
allegations in the record in the light most favorable to Plaintiff’s claim. See Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004). Once the Court has done so,
“the question whether [Officer Conklin’s] actions were objectively reasonable is ‘a pure
question of law.’” Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009)
quoting Scott v. Harris, 550 U.S. 372, 381 n. 8 (2007).
Defendant Officer Conklin asserts that prior to discharging his police firearm,
Caleb twice stated that he had a gun. Specifically, according to Officer Conklin, Caleb
stated, “I have a gun. Leave me alone.” Officer Conklin further asserts that after he
directed Caleb to keep his hands visible, Caleb responded by stating “Are you not
listening to me? I have a gun. I will kill you.” Plaintiffs argue that there are three
witnesses who observed the interaction between Officer Conklin and Caleb, and that
these witnesses did not hear Caleb ever make any statements to Officer Conklin. Thus,
according to Plaintiffs, a genuine issue of material fact is presented regarding whether
Caleb ever stated he had a gun, and, therefore, whether Officer Conklin had probable
cause to believe that Caleb posed a threat of serious physical harm to himself or others.
The statements of two of the three witnesses cited by Plaintiff, Janna Craig and
Katherine Kittrell, do not create a genuine issue of material fact. These witness affidavits
merely fail to corroborate Officer Conklin’s account of Caleb’s statements regarding
having a gun; they do not actually dispute Officer Conklin’s account. Indeed, the
affidavits of Ms. Craig and Ms. Kittrell do not actually dispute that Caleb said he had a
gun; they simply indicate that they did not hear Caleb state anything to officer Conklin.
There is a critical difference, as the Court of Appeals for the Sixth Circuit has
In Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir. 2009), the Sixth
Circuit addressed an alleged inconsistency in what the witnesses heard versus the
officer’s statements that they announced themselves. The court stated that, “the three
witnesses’ failure to hear the ‘Cleveland Police’ announcements does not refute the
detectives’ testimony that they in fact made several such announcements; it establishes
only that the witnesses didn’t hear the announcements. In other words, the discrepancy
doesn’t actually raise a genuine dispute of fact.” Id. at 914 (emphasis in original). The
court noted that even though the conditions were such that that the witnesses were in a
position to hear the announcements, “it is likely they were paying attention to other
matters.” Id. Thus, the fact that all three witnesses in that case did not notice the
detectives announcing themselves did not necessarily impugn the veracity of the
detectives’ account. Id.
The witness affidavits of Janna Craig and Katherine Kittrell demonstrate that, as
the events surrounding Caleb Surface’s death unfolded, the two witnesses were at times
“likely paying attention to other matters,” as were the witnesses in Chappell. Janna Craig
was outside shoveling her driveway when she first saw Caleb Surface jog past her. (Doc.
28-1). She thought nothing of it and went back to work, only for her attention to be
redrawn to the event mere moments before the shooting took place. (Id.). Katherine
Kittrell first encountered Caleb when he knocked at her door asking to use the telephone.
(Doc. 28-3, at 1). Ms. Kittrell did not interact directly with Caleb; her father answered
the door. (Id.). After Caleb left her house, Ms. Kittrell’s affidavit describes her listening
to a conversation between her father and a police officer outside of her house. (Id. at 2).
Katherine Kittrell did not see Caleb’s shooting, as it occurred in a location she could not
observe from her house. (Id.). Thus, neither of these affidavits demonstrate to the Court
that the witnesses’ attention was firmly fixed upon Caleb Surface or Officer Conklin
during the events leading to Caleb’s death; rather, the affidavits demonstrate the
distracted attention the Sixth Circuit cautioned against lending too much credence to in
However, Officer Conklin’s account of the events surrounding Caleb Surface’s
death is more genuinely disputed by the February 18, 2016 affidavit of witness Melanie
Freel, which was submitted as an exhibit to Plaintiffs’ response to the current motion for
summary judgment. Ms. Freel states in her affidavit that she witnessed the moment
Caleb was killed from her back window, roughly 200 feet away from the cul-de-sac that
served as the scene. 3 (Doc. 28-2, at 2). According to the affidavit, Officer Conklin
followed Caleb until the two were some distance greater than 50 yards apart. (Id.). At
that time, Officer Conklin said, “Caleb, Stop.” (Id.). Caleb then turned around, at which
time Officer Conklin immediately fired his gun twice, killing Caleb. (Id.). Thus, under
The Court notes that Defendant’s reply to his motion for summary judgment, in an attempt to discredit
the reliability of the nonparty witness affidavits, greatly exaggerates the distance between the vantage
point of the witnesses and the location of the incident. Defendant claims that the distance between Ms.
Freel’s vantage point in her house and the scene of the incident is “approximately 200 yards” and that
the distance between Ms. Kittrell’s vantage point in her house and the incident is “approximately 600
yards.” (Doc. 31, at 5 n. 2). The map Defendant attached to that reply, however, tells a different story.
Ms. Freel’s vantage point is approximately 200 feet from the location of the incident, a much smaller
distance than the 200 yards alleged. (Doc. 31-1). Defendant’s measurement of Ms. Kittrell’s distance
from the incident is even further off. In that case, the error was not only in the unit of measurement
used on the map but also in reading the map’s distance markers; Ms. Kittrell was approximately 350
feet from the incident, not 600 yards as alleged. (Id.).
this witness’s observations, Caleb did not speak, and there was no significant lapse of
time between Officer Conklin’s warning and the shooting that would have allowed Caleb
to threaten Officer Conklin as Officer Conklin alleges.
The Court notes that the exact statement from Melanie Freel’s February 18, 2016
affidavit was that she “never heard Caleb Surface speak a word” from the moment he left
her home. (Doc. 28-2, at 2). This statement, on the surface, seems to implicate the same
issue highlighted by the Sixth Circuit in Chappell as the statements of the other two
witnesses—the critical difference between saying “I did not hear the decedent say
anything” and “the decedent did not say anything.” However, unlike the other nonparty
witnesses in this case, and unlike the witnesses in Chappell, Ms. Freel’s testimony clearly
indicates that her continuous, undivided attention was focused on Caleb Surface from the
moment he left her house until his death. There were no indications that Ms. Freel was
“likely . . . paying attention to other matters” as was found in Chappell. Chappell, 585
F.3d at 914. The Court therefore attributes a distinct credibility to Ms. Freel’s testimony
regarding Caleb’s lack of response that cannot be found for the other nonparty witnesses.
The February 18, 2016 affidavit of Melanie Freel raises a genuine issue of material
fact that prevents this Court from declaring that Officer Conklin’s actions were
objectively reasonable. This affidavit directly contradicts Officer Conklin’s version of
events, in which Officer Conklin allowed Caleb time to respond to his order to stop
moving before firing and Caleb directly threatened to shoot Officer Conklin with a gun.
If the Court takes Melanie Freel’s February 18 affidavit as the true version of events,
which it must in evaluating Defendant’s motion for summary judgment, it was not
objectively reasonable for Officer Conklin to fire his weapon at a fleeing suspect
immediately after telling him to stop moving, without giving a proper chance to respond
in any way. This is true even given the information Officer Conklin had been given
about Caleb by the police dispatch before arriving at the scene; at the moment of the
shooting, the events as described in Melanie Freel’s February 18 affidavit do not
demonstrate probable cause for Officer Conklin to believe that there was a genuine threat
to his life or the lives of others.
Melanie Freel’s February 18, 2016 affidavit is incongruous with much of the other
evidence available for the Court’s review. Officer Conklin’s version of events is directly
contradictory to Ms. Freel’s statements. The testimony of other witnesses to the shooting
also differs from the Freel affidavit in key respects—witness Janna Craig stated in an
affidavit that Caleb put his right hand in his jacket pocket and was “fishing around” after
Officer Conklin told him to put his hands up in the air. (Doc. 28-1). Finally, Ms. Freel’s
February 18, 2016 affidavit contains discrepancies with an earlier affidavit given by Ms.
Freel on January 18, 2014, the day of the shooting. In the earlier affidavit, Ms. Freel
states that Caleb, who came to her house looking to use the telephone, was “reaching into
his pockets in his coat,” a suspicious behavior that was excluded from her later affidavit.
These discrepancies in the evidence are evident. A genuine dispute of fact
remains, the disputed facts are material, and the evidence taken in the light most
favorable to Plaintiffs would not exonerate Defendant’s actions as a matter of law.
Accordingly, entry of summary judgment by the Court is not appropriate.
State Law Claims
In addition to Officer Conklin’s request for qualified immunity from Plaintiffs’
claim under 42 U.S.C. § 1983, his motion for summary judgment further argues that he is
entitled to state tort immunity under Ohio Revised Code § 2744.03(A)(6)(b) for each of
the state claims asserted by Plaintiffs. An officer who uses deadly force in appropriate
circumstances is entitled to statutory immunity, unless the officer’s actions are done with
malicious purpose, in bad faith, or in a wanton or reckless manner. Kendzierski v.
Carney, C.A. No. 22739, 2005 WL 3482397 (Ohio Ct. App. Dec. 21, 2005).
Here, the Court has already found that it cannot declare as a matter of law that
Officer Conklin’s use of force was objectively reasonable. It follows that at this time the
Court cannot conclude as a matter of law whether Officer Conklin’s conduct was
malicious, in bad faith, or in a wanton or reckless manner. See Pollard v. City of
Columbus, Ohio, 780 F.3d 395, 404 (6th Cir. 2015). As a result, Officer Conklin is not
entitled to state tort immunity through summary judgment.
The Court concludes that there remains a genuine dispute of material fact as to
whether Defendant Officer Scott Conklin acted reasonably such that there are no viable
state or federal claims against him. Accordingly, the Court DENIES Defendant's motion
for summary judgment (Doc. 24).
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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