Luke v. Lambert et al
Filing
126
OPINION AND ORDER denying 102 Johnson's Motion for Summary Judgment with respect to Luke's individual-capacity claims against Johnson arising out of alleged sexual assault and granting Johnson's motion with respect to all of Luke's claims not arising out of Johnson's alleged sexual assault, as well as any remaining official capacity claims against Johnson. Signed by Judge Douglas R. Cole on 9/29/21. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHERYL LUKE,
Plaintiff,
Case No. 1:17-cv-63
JUDGE DOUGLAS R. COLE
v.
DAVID JOHNSON,
Defendant.
OPINION AND ORDER
During the spring of 2013, Cheryl Luke, the plaintiff in this action, was
incarcerated in the Warren County Jail. The gravamen of her claim is that the sole
remaining defendant in this action, David Johnson, who was a corrections officer at
that facility, sexually assaulted her on one occasion during her incarceration. Johnson
has now moved for summary judgment. (Doc. 102). As more fully set forth below,
while there are some discrepancies in Luke’s account of the alleged events, her
testimony nonetheless suffices to create a genuine dispute of material fact as to her
claim, and that account is not blatantly contradicted by the video evidence that
Johnson provides. Accordingly, the Court DENIES the Motion (Doc. 102) as to the
individual-capacity claims arising out of alleged sexual assault by Johnson. Because
Luke has indicated that she will drop any remaining claims not arising out Johnson’s
alleged sexual assault, as well as any remaining official-capacity claims against
Johnson, the Court GRANTS the Motion (Doc. 102) as to those claims.
1
FACTUAL BACKGROUND
A.
Luke Spends Eleven Days At The Warren County Jail.
In 2013, while living in Colorado, Luke was arrested on two Ohio warrants,
one in Butler County and the other in Warren County. (Def. Ex. 1, Defendant’s
Proposed Undisputed Facts (“Def. Prop. Facts”), Doc. 102-1, #2593; compare Pl. Resp.
to Def. Prop. Undisputed Facts (Pl. Resp)., Doc. 115, #3525). Luke was incarcerated
in the Butler County Jail for approximately one week during April 2013. (Def. Prop.
Facts, Doc. 102-1, #2593). 1 Luke was then incarcerated in the Warren County Jail
(“the Jail”) for about one and a half weeks beginning May 3, 2013. (Id. at #2594).
Luke’s time in the Jail ended on May 14, 2013, when she was transferred to Summit
Behavioral Health (“Summit”) to receive mental health care. (Id.).
At the start of her period of incarceration in the Jail, Luke was housed among
the Jail’s general population. (Id. at #2597). However, on May 7, Jail staff requested
Luke’s transfer to the Jail’s booking department so that she could be on increased
watch. (Id.). As a matter of policy, the Jail places inmates on increased watch when
they need more constant supervision or if they are at risk of experiencing a medical
emergency. (Id. at #2598). Luke’s assignment to the booking department on increased
watch continued until the end of her period of incarceration at the Jail on May 14.
(Id. at #2597). Luke’s claim in this action relates to this eight-day period she spent in
the booking department of the Jail.
The Court has in each instance compared Defendant’s Proposed Undisputed Facts with
Plaintiff’s Response to Defendant’s Proposed Undisputed Facts to determine which facts are
undisputed. For convenience, the Court cites only the former document here and following.
1
2
The booking department of the Jail contains three holding cells. (Id. at #2594).
Cell 2 is a larger cell that can hold up to six individuals; cells 1 and 3, by contrast,
are identical single cells. (Id. at #2594–95). Holding cells 2 and 3 are located across
from the booking counter. (Id. at #2595). Holding cell 1, though, is located at the end
of a hallway leading behind the booking counter. (Id.).
Three video cameras monitor the booking department. (Id. at #2596). However,
Johnson relies on the footage from only a single camera, Camera A, in support of the
instant motion. (Compare Def. Mot. for Summ. J., Doc. 102, #2559, with Pl. Resp.,
Doc. 115, #3530). At argument, Johnson explained that is because the other two
cameras have limited storage, and frequently “overwrite” existing video with new
video. Here, by the time Luke pressed her claims, footage from the other cameras
during the relevant time period was no longer available. Footage from Camera A does
not capture the interior of holding cell 1. (Compare Def. Prop. Facts, Doc. 102-1, #2596
(“From Camera A one can also see anyone who walks in the direction of cell 1.”), with
Pl. Resp., Doc. 115, #3530 (“booking Cell 1 is not on video …”)). Holding cells 2 and 3
are visible from Camera A. (Def. Prop. Facts, Doc. 102-1, #2596).
When she was transferred to increased watch on May 7, Luke was initially
housed in holding cell 3. (Id. at #2598). Luke subsequently spent periods of time
housed in both holding cell 1 and holding cell 3 during her period of incarceration in
the booking department of the Jail. (See, e.g., id. at #2604, 2606, 2612).
3
B.
Johnson Interacts With Luke In Her Cell.
Johnson worked as a relief supervisor in the Jail in May 2013. (Id. at #2597).
During the eight-day period relevant here, Johnson worked from time to time in the
booking department. This included, on occasion, interacting with Luke.
In her Amended Complaint (Doc. 5), Luke originally alleged that Johnson and
at least two other corrections officers sexually assaulted her “on more than one
occasion” during her time in the booking department. (Am. Compl., Doc. 5, #43). But
Luke was noncommittal on when during that time period the alleged assaults
occurred.
In fairness to Luke, that may have been due to issues outside her control. Luke
suffers from severe epilepsy, and she has also received treatment for anxiety and
depression. (Luke Dep., Doc. 91-8, #634, 778). During her period of incarceration at
the Jail, Luke had displayed erratic and troubled behaviors for which she received
medical attention both inside and outside the facility. That may have resulted in part
from a lapse in Luke’s anti-seizure medication, combined with the possibility
(according to Luke) that when Luke did resume such medication, it was Tegretol
rather than Dilantin or Lyrica, the drugs she was accustomed to taking. (Pl. Resp. in
Opp. (“Pl. Opp.”), Doc. 112, #3439–3440). But the Court also notes that Johnson
disputes whether Luke took Tegretol at the jail, citing Luke’s deposition testimony
that she does not remember doing so. (Def. Repl. in Supp. of Mot. for Summ. J. (“Def.
Repl.”), Doc. 120, #3586 (citing Luke Dep., Doc. 91-8, #979, 989)). In any event, Luke
was first placed on increased watch, and thus transferred to the booking department,
4
due to her “bizarre behavior” at 1:36 a.m. on May 7. (Def. Prop. Facts, Doc. 102-1,
#2597–98).
As noted above, Luke originally alleged multiple assaults by multiple
assailants. By the time summary judgment arrived, though, Luke had dropped her
claims against all other defendants in this action (see Doc. 81), and she was alleging
assault only against Johnson. Because Luke had still failed to pinpoint the time when
the alleged assault occurred, in support of the instant Motion for Summary
Judgment, Johnson painstakingly documents every instance in which the two are in
each other’s presence during the entire eight-day period. The only time it appears
that the two were together for any extended period of time, yet off camera, was an
approximately two-and-a-half-minute period on May 8, 2013. Perhaps not
surprisingly, Luke now claims that is when the assault occurred.
On that day, the video shows that Johnson and a female corrections officer
moved Luke from holding cell 3 to holding cell 1. (Def. Prop. Facts, Doc. 102-1, #2601–
02). At 1:22 p.m., Johnson went down the hallway to holding cell 1, followed by a
female corrections officer about thirty seconds later. (See Defendant’s Exhibit 38
(“Def. Ex. 38”), Clip 7 13:22:40–13:24:28). Johnson and the officer took Luke out of
the booking department. (See id.). At 1:31 p.m., Johnson took Luke back to holding
cell 1. (Id.). Johnson returned from holding cell 1 at 1:34 p.m. (See Def. Ex. 38, Doc.
100, Clip 8 13:31:43–13:34:10). For the two-and-a-half minutes after Johnson and
Luke entered cell 1 until Johnson returned to view, neither Johnson nor Luke was
visible from Camera A. (See id.). As noted, this was their only known off-camera
5
interaction during Luke’s stay in the booking department. (Pl. Resp., Doc. 115,
#3542).
C.
Luke Receives Medical Care And Sperm Is Found In Her Urine.
On May 9, the day after the day on which Luke now claims the alleged assault
occurred, Luke became unresponsive while in the shower area, displaying fixed and
dilated pupils. (Def. Prop. Facts, Doc. 102-1, #2604). Luke was transported to
Bethesda Arrow Springs Hospital (“Bethesda Hospital”) at about 4:30 a.m. (Id. at
#2605). Part of the diagnostic work-up the hospital performed included a urinalysis.
(Id.). That urinalysis did not detect the presence of any sperm. 2 Based on the testing
conducted on Luke, the treating physicians diagnosed Luke with “conversion
reaction.” (Id.). Luke returned to the Jail that day.
As alluded to above, the incident that led to Luke’s transport to Bethesda
Hospital was merely one instance of a series of odd behaviors. For example, on several
occasions during her time in the booking department, Luke stood naked at the door
of holding cell 1. (Id.). At some point during her time there, although the parties
dispute exactly when, corrections officers taped trash bags over the window.
(Compare id., at #2609, with Pl. Resp., Doc. 115, #3550). While they disagree on the
exact date, they agree that the trash bags were placed over the windows of holding
cell 1 in order to prevent others from seeing Luke in the nude. (Def. Prop. Facts, Doc.
102-1, #2609).
A urinalysis is not meant to test for the presence of sperm. At the same time, as discussed
below, if sperm is present in a patient’s vagina, a urinalysis catheter can sometimes transport
sperm into the bladder, in which case its presence may be detected in a urinalysis.
2
6
These and other instances of Luke’s behavior led the medical staff of the Jail
to arrange for Luke to be transported to Atrium Emergency Room on May 10 (the day
after her trip to Bethesda Hospital). (Id. at #2610). Atrium ran various medical tests
on Luke including a head CT scan, blood work, and another urinalysis. (Id. at #2612).
For the urinalysis, Nurse Shannon Burkhart collected Luke’s urine sample using a
catheter. (Id. at #2613). This time, the test revealed the presence of sperm in Luke’s
urine. (Compare Pl. Resp., Doc. 115, #3567, with Def. Prop. Facts, Doc. 102-1, #2616).
Nurse Burkhart did not observe any injuries to Luke’s genital area and did not
request a SANE (sexual assault) examination for Luke. (Def. Prop. Facts, Doc. 102-1,
#2613).
Luke returned from Atrium to the Jail that same day. (Id.). Four days later, on
May 14, 2013, Luke was transferred to Summit for additional behavioral health
treatment. (Def. Prop. Facts, Doc. 102-1, #2615).
D.
Luke Alleges That Johnson Sexually Assaulted Her.
A few days after Luke’s arrival at Summit, Summit personnel called Johnson
to inform him that Luke’s criminal legal counsel had requested a rape kit due to a
finding of sperm in Luke’s urinalysis. (Def. Prop. Facts, Doc. 102-1, #2615; Pl. Resp.,
Doc. 115, #3560). Johnson notified Barry Riley, the Warren County Jail
Administrator. (Def. Prop. Facts, Doc. 102-1, #2616). Riley instructed Johnson to
notify the Warren County Sheriff’s Office and ask them to open an investigation, and
Johnson did so. (Id.). The investigation was assigned to Detective Paul Barger, who
interviewed Luke some months later, on August 6, 2013, along with Detective Brandy
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Carter. (Id. at #2617). Luke told Barger she was sexually assaulted at the Warren
County Jail. (Id.). Barger also reviewed jail video of Luke, Luke’s medical records,
and her increased watch log records. (Id. at #2618). Barger also interviewed Johnson.
(Id.). Barger ultimately closed Luke’s case, and no criminal charges were brought
against any officer for assaulting Luke. (Id. at #2619).
The parties dispute how Luke first learned of the presence of sperm in her
urine sample collected at Atrium. While her criminal defense counsel learned of the
result shortly after Luke arrived at Summit, it is not clear that Luke also learned at
that time. Johnson maintains that Luke learned of the test result when she was
transferred to the University of Cincinnati Hospital (“U of C Hospital”) for a SANE
exam on May 20. (Def. Prop. Facts, Doc. 102-1, #2616). But Luke says there is no
evidence of any discussion with U of C Hospital providers regarding the sperm
finding, and that she does not remember engaging in any such conversation. (Pl.
Resp., Doc. 115, #3561; Luke Dep., Doc. 91-8, #768). Nevertheless, the parties agree
that at the U of C Hospital examination on May 20, Luke denied any sexual assault,
was not observed to have any physical injuries, and did not receive a SANE
examination or submit to a rape kit. (Def. Prop. Facts, Doc. 102-1, #2617).
E.
Luke Sues Johnson And Others Based On Her Treatment While At The
Warren County Jail.
Luke first sued Johnson (and numerous other defendants) roughly two years
later on May 1, 2015. In her original Complaint, Luke asserted various counts, only
some of which pertained to Johnson. Claims against Johnson included deliberate
indifference to Luke’s serious medical needs, deliberate indifference to Luke’s safety,
8
violation of Luke’s substantive right to be free from sexual assault, tortious battery,
and failure to intervene. (See No. 1:15-cv-00288, Compl., Doc. 1, ¶¶ 50–76, #6–8). On
January 28, 2016, all parties to that suit agreed to a stipulated dismissal without
prejudice. (Stip., Doc. 30, #147–48).
On January 27, 2017, Luke filed the instant suit. She named the same
defendants, this time suing them in both their individual and their official capacities,
asserting many of the same claims. (Compl., Doc. 1). Against Johnson, Luke’s claims
included denial of medical care, failure to protect and denial of safety, denial of right
to be free from sexual assault and excessive force, battery, and failure to intervene.
(Id. at ¶¶ 81–96, #18–20). On February 1, 2017, Luke filed an amended complaint
asserting similar claims against the same defendants. (Am. Compl., Doc. 5, ¶¶ 73–92
#47–49). But, as noted above, on February 6, 2020, Luke moved to drop all defendants
other than Johnson, and on February 28, 2020, the Court granted that motion. (Mot.
to Drop, Doc. 81; Order granting Mot. to Drop, Doc. 82).
At her deposition on November 4, 2019, Luke provided the following account
of the alleged assault: although she could not remember the date on which it occurred,
Luke remembers that she woke up in her holding cell and felt pressure on the back
of her right collarbone and in the back of her shoulder blade. (Luke Dep., Doc. 91-8,
#622). Luke had mucous coming out of her nose. (Id.). Luke lifted her head up and
saw two sets of feet by the door of her cell and then saw Johnson. (Id.). Luke passed
out for a moment. (Id.). Luke felt vaginal penetration and saw Johnson standing over
her. (Id.). Luke stated that the two corrections officers whose feet she saw “were
9
blocking the door.” (Id. at #624). Luke heard voices of two or three men, but
recognized only Johnson. (Id.). The incident lasted twenty to thirty more seconds after
Luke woke up. (Id. at #626). Luke testified that she did not know whether anyone
ejaculated into her vagina, a fact that may be relevant as the urinalysis at Atrium
detected sperm. (Id. at #625).
Also during discovery in this action, on August 3, 2020, Luke submitted a
report from Dr. Ayman Mahdy regarding the procedures that Atrium used to take
and examine Luke’s urine sample. (Mahdy Decl., Doc. 104-3). Dr. Mahdy is a urologist
and associate professor of urology currently serving as the medical director of urology
services at West Chester Hospital. (Id.). Based on Burkhart’s account from her
deposition, Dr. Mahdy’s report concludes that Burkhart used the proper technique to
avoid external contamination of Luke’s urine sample and that the sample was
therefore reliable. (Id. at #2820). Dr. Mahdy also concludes that the lab technician,
Michael Peppas, properly analyzed the sample to contain sperm, again based on
Peppas’s deposition. (Id.). Dr. Mahdy’s report further opines that sperm in female
urine is “not a normal finding,” and that one possible source of sperm in female urine
is the presence of sperm in the vagina or labia, such as could occur after sexual
intercourse. (Id. at #2819). Dr. Mahdy’s report also suggests that the absence of sperm
in Luke’s urine sample taken May 9 at Bethesda Hospital does not rule out recent
sexual intercourse or presence of sperm in her vagina at that time. (Id. at #2820). Dr.
Mahdy’s report does not include any independent review of Atrium’s policies and
procedures for collecting and analyzing urine samples. (See generally id.; see also Def.
10
Obj., Doc. 117, #3572). Rather, Dr. Mahdy relies on his experience and review of the
medical literature to compare the deposition testimony of Burkhart and Peppas with
his understanding of the proper procedure for taking and analyzing a urine sample.
(Mahdy Decl., Doc. 104-3, #2818).
F.
Johnson Moves For Summary Judgment.
On October 19, 2020, Johnson filed the instant Motion for Summary Judgment.
(Doc. 102). He argues that the video footage from Camera A blatantly contradicts
Luke’s account of sexual assault. (Def. Mot. for Summ. J., Doc. 102, #2576). For this
reason, Johnson argues that, despite Luke’s testimony, there is no genuine dispute of
material fact as to whether Johnson sexually assaulted Luke. (Id. at #2575). Johnson
also argues that the urinalysis result is “inconclusive” and therefore inadmissible
evidence that should not be considered on summary judgment. (Id. at #2579–80).
On November 24, 2020, Luke filed her opposition to Johnson’s Motion. (Doc.
112). In her response, Luke indicated that she would drop her claims against Johnson
that are based on conditions of confinement, failure to intervene, failure to protect,
and denial of medical care. (Id. at #3446 n. 3). Luke’s remaining claims of denial of
the right to be free from sexual assault, excessive force, and battery all stem entirely
from Johnson’s alleged sexual assault of Luke. (See id.). On December 8, 2020,
Johnson both replied in support of the instant Motion and objected to the
consideration of Dr. Mahdy’s Report under Federal Rule of Civil Procedure 56(c)(2).
(Def. Repl., Doc. 120; Def. Obj., Doc. 117). The Court heard oral argument on
September 9, 2021.
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LEGAL STANDARD
To prevail on a motion for summary judgment, the moving party must
demonstrate that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Morehouse v. Steak N Shake, 938 F.3d
814, 818 (6th Cir. 2019) (quotation omitted); Fed. R. Civ. P. 56(a). “The mere existence
of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690,
697 (6th Cir. 2020) (bracket omitted) (quoting Anderson v. Liberty Lobby, 477 U.S.
242, 247–48 (1986)). A “scintilla” of evidence is not enough; “the evidence must be
such that a jury could reasonably find for the plaintiff.” Mich. Prot. & Advocacy Serv.,
Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994). However, “[t]he party seeking
summary judgment always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of material fact.” Rudolph v. Allstate Ins.
Co., No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted).
Summary judgment is not the place for “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts,”
which should instead be left for the jury at trial. Anderson, 477 U.S. at 255.
Accordingly, inferences to be drawn from the record must be viewed in the light most
favorable to the non-moving party. U.S. v. Diebold, 369 U.S. 654, 655 (1962).
12
Pursuant to Federal Rule of Civil Procedure 56(c)(2), a party may object that a
fact is not supported by evidence that could be presented in a form admissible at trial.
Fed. R. Civ. Pr. 56(c)(2). However, evidence need not already be presented in such
form to be considered on summary judgment, so long as it could be presented at trial
in a form that would be admissible. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
ANALYSIS
A.
The Court May (And Does) Consider Luke’s Urinalysis Results From
Atrium And Dr. Mahdy’s Report In Deciding The Instant Motion.
As an initial matter, the Court must decide whether to consider the May 10
urinalysis results from Atrium showing sperm in Luke’s urine in connection with the
motion for summary judgment. The Court must also decide whether to consider Dr.
Mahdy’s expert report in support of the reliability of the techniques used to collect
and test the sample. Johnson argues that the former is “inadmissible” and that the
latter should be “disregarded.” (See Def. Mot. for Summ. J., Doc. 102, #2580; Def. Obj.,
Doc. 117, #3572). Regarding the urinalysis result, Johnson argues that it is
“inconclusive” because the test does not show the source of the sperm or how long it
was present in Luke’s urine, nor does the urinalysis confirm that Luke was sexually
assaulted. (Def. Mot. for Summ. J., Doc. 102, #2580). Regarding Dr. Mahdy’s report,
Johnson argues that the report lacks a sufficient basis in fact under Federal Rule of
Evidence 702 because Dr. Mahdy is not a lab technician and neither personally
observed the collection and testing of Luke’s urine sample nor reviewed Atrium’s
policies and procedures. (Def. Obj., Doc. 117, #3572).
13
The Court concludes that both the urinalysis result and Dr. Mahdy’s expert
report are appropriate for consideration at the summary judgment stage. Beginning
with the urinalysis result, Johnson’s attacks on its supposed shortcomings miss the
mark. The urinalysis did not seek or purport to determine either the source of sperm,
the length of time sperm had been present in Luke’s body, or the probability that
anyone sexually assaulted Luke. Rather, Luke relies on it simply as evidence that
sperm was present in Luke’s body shortly after the alleged sexual assault. Luke then
argues that a reasonable jury could infer from the presence of sperm, coupled with
the difficulty of identifying an alternative source for the sperm, that sexual assault
by Johnson was the source of the sperm. (See Pl. Opp., Doc. 112, #3541–3543). The
Court expresses no opinion on the merits of that inference, or even on whether the
test in fact accurately reported that result. The point is merely that Johnson has
failed to show that the urinalysis result is wholly unreliable, and, as such, that result
is at least probative evidence of the presence of sperm in Luke’s body shortly after the
alleged sexual assault. Defendant does not seriously dispute that. And it would be
difficult to deny that the presence of sperm tends to make it at least more likely
(which does not mean likely) that Johnson had sexually assaulted Luke as she
alleges. Johnson therefore has not shown that the urinalysis result is anything other
than relevant, admissible evidence appropriate for consideration at this stage.
In support of his characterization of the urinalysis result as “inconclusive,”
Johnson relies on the Sixth Circuit’s decision in Friedrich v. Echols. No. 91-3929, 1992
WL 233902, *6 (6th Cir. 1992). There, the Sixth Circuit held that a trial court did not
14
abuse its discretion when it excluded the results of a polygraph test based on the
examiner’s conclusion that the test results were “‘inconclusive, the same as no test
being given at all.’” Id. at *6. But Johnson cannot, and does not, argue that the
urinalysis in this case was “inconclusive” in the sense of being “the same as no test
being given at all.” Rather, the urinalysis in this case revealed the presence of sperm
in Luke’s urine, a fact that would not have been apparent in the absence of the
urinalysis. By the same token, as Luke notes, the test result in Myles v. Lafler was
“inconclusive” in the sense of failing to provide reliable evidence as to whether or not
gunshot residue was present on the defendant’s person. (See Pl. Opp., Doc. 112, #3452
(citing Myles v. Lafler, No. 2:06-cv-14101, 2012 WL 1021720, at *7 (E.D. Mich. Mar.
27, 2012))). Again, Johnson here does not argue that the urinalysis result in this case
is “inconclusive” in that sense, nor, as noted, does he point the Court to any facts that
would cast doubt on its reliability. Because the urinalysis result is at least probative
evidence of the presence of sperm in Luke’s body two days after the alleged sexual
assault, it is relevant evidence that tends to make a material fact more likely (which,
again, is not the same as likely). Johnson has not shown that it is otherwise
inadmissible. The Court will therefore consider the urinalysis result as part of the
record on summary judgment.
Turning to Dr. Mahdy’s report, the Court also finds Johnson’s objection
unpersuasive. Johnson cites no legal authority, and the Court is aware of none, for
the proposition that an expert who opines on the reliability of the procedures used to
collect or test a given medical sample must review the policies of the institution where
15
the test took place, much less that the expert must personally observe the collection
or analysis as Johnson seems to suggest. (Def. Obj., Doc. 117, #3572). Here, Dr.
Mahdy instead relied on the deposition testimony of Burkhart and Peppas regarding
the procedures they used to collect and test Luke’s urine sample. Johnson identifies
nothing inherently inappropriate about such reliance for purposes of expert
testimony. Moreover, although Johnson notes that Dr. Mahdy “never ran or
supervised a lab,” Johnson fails to explain why this fact renders Dr. Mahdy
incompetent to opine as to whether a given lab procedure passes muster. (Id.). Dr.
Mahdy has practiced as a urologist and professor of urology for decades. (Mahdy
Decl., Doc. 104-3, #2822). The Court sees no reason at present to disregard Dr.
Mahdy’s report and will consider it as part of the record on summary judgment. 3
B.
Luke’s Testimony, If Not Disregarded, Creates A Genuine Dispute Of
Material Fact As To Whether Johnson Sexually Assaulted Luke.
The central question presented by Johnson’s Motion is whether there is a
genuine dispute of material fact regarding Luke’s claims. The Court has little
difficulty identifying the most important factual dispute between the parties—Luke
contends that Johnson sexually assaulted her on May 8 between 1:31 and 1:34 p.m.,
and Johnson denies that he ever sexually assaulted Luke. To call this dispute
material would be an understatement. If a jury were to credit Luke’s sworn testimony
that Johnson sexually assaulted her, she would likely win her case. If, by contrast,
Johnson remains free to voir dire Dr. Mahdy at trial, and if the doctor lacks a sufficient
expertise regarding laboratory procedures, the Court will exclude that evidence at trial.
Based on the paper record at summary judgment, though, the opinion passes muster.
3
16
the jury were to credit Johnson’s testimony, Luke’s case would be doomed. In short,
the outcome here largely turns on assessing the comparative credibility of the two
witnesses, a task assigned solely to the province of the jury.
Even if the competing accounts themselves were not enough, Luke also points
to the urinalysis finding of sperm, coupled with the alleged difficulty of identifying
another source of the sperm, as support for her case. (Pl. Resp., Doc. 115, #3449–53).
And, Luke’s Response to Johnson’s Proposed Undisputed Facts also includes
reference to other facts—Johnson’s act of discarding Luke’s mattress, the possibility
that trash bags were covering the windows of Luke’s cell when Johnson and Luke
were there together, the fact that Johnson testified that he could not remember where
he was with Luke when he took her out of booking, and Luke’s alleged vulnerable
condition partly induced by the Tegretol medication—as further support for her case.
(Pl. Opp., Doc. 112, #3450; Pl. Resp., Doc. 115 #3550, 3542, 3559). For his part,
Johnson has competing explanations on each of these fronts.
The Court need not address, though, whether this other evidence, in and of
itself, would suffice to create a genuine dispute. Luke’s testimony that Johnson
sexually assaulted her is the central piece of evidence that would ordinarily suffice
on its own to survive summary judgment. Accordingly, so long as the Court does not
entirely discount Luke’s testimony, there is a genuine dispute of material fact that
precludes summary judgment. Indeed, Johnson does not really dispute that point.
Rather, he contends that the Court should entirely discount Luke’s account. That is
the issue to which the Court turns now.
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C.
Video Evidence Does Not Blatantly Contradict Luke’s Claim That
Johnson Sexually Assaulted Her.
While acknowledging that competing eyewitness accounts typically create a
genuine dispute of material fact, Johnson argues that there is an exception to that
rule. In particular, he argues that a court can reject a witness’s version of events
where video evidence “blatantly contradicts” the witness’s statement. And here, he
argues, the video footage from Camera A “blatantly contradicts” Luke’s claim that
Johnson sexually assaulted her. (Def. Mot. for Summ. J., Doc. 102, #2576–79). The
Court disagrees.
Johnson’s argument starts on firm legal footing. The Supreme Court has held
that, where a party’s account is “blatantly contradicted” by video footage, “so that no
reasonable jury could believe it,” a court should not adopt that version of events for
summary judgment purposes. Scott v. Harris, 550 U.S. 372, 380 (2007). But “blatantly
contradicted” is a fairly high standard. Caselaw suggests, for example, that an
important consideration in making that determination is whether the witness’s
account relates to events depicted in the video footage itself. For example, in Scott v.
Harris, the material factual issue concerned whether the plaintiff, a criminal suspect
in a high-speed chase, “was driving in such fashion as to endanger human life,” such
that an officer’s decision to ram his bumper into the suspect’s vehicle was objectively
reasonable. 550 U.S. at 380. The video footage there blatantly contradicted the
plaintiff’s self-serving characterization of his driving because it showed (on-camera)
how the plaintiff was driving at the time in question. Similarly, the leg-sweep
maneuver that formed the basis for the Eighth Amendment excessive force claim in
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Griffin v. Hardrick occurred on-camera, as did the events that formed the basis for
the officer’s good-faith defense, and it was footage of these events that contradicted
the plaintiff’s allegation of excessive force. 604 F.3d 949, 954 (6th Cir. 2010). So far
as the Court can tell, Johnson has cited no case in which video footage “blatantly
contradicted” a plaintiff’s narrative as to events not captured in that footage. See
Shreve v. Franklin County, Ohio, 743 F.3d 126, 135 (6th Cir. 2014) (video footage
showed officers tried to handcuff suspect several times before using taser);
Pennington v. Terry, 644 F. App’x 533, 534 (6th Cir. 2016) (video from officer’s
dashboard camera “clearly depict[ed] all of the material facts”).
This is not to say that video footage could never blatantly contradict a party’s
account as to events not depicted in that footage. For example, in a given case, it
might be that the events the video footage does capture render a party’s account of
what happened off-camera a physical impossibility. To use an example related to the
facts here, if an inmate claimed that an officer caused off-camera physical injuries
obviously inconsistent with the inmate’s bodily condition evidenced in video footage
immediately after the alleged injuries occurred, a court might be justified in
disregarding the inmate’s testimony to such injuries for summary judgment
purposes. Imagine, for example, that an inmate claims that an officer sliced the
inmate’s right forearm with a knife off camera, but on-camera footage captured
shortly after the alleged event clearly depicts the inmate’s right forearm, and there
is no wound present. But even then, caselaw suggests that the standard is high—
disregarding the inmate’s account is justified only when it is clear that the video
19
footage would have captured the alleged injuries had they occurred. See Germain v.
Gilpin, No. TDC-18-0846, 2019 WL 1433019, at *8 (D. Md. Mar. 29, 2019) (absence of
pepper spray in video footage of inmate’s body immediately after alleged incident
insufficient for summary judgment where evidence did not establish pepper spray
would necessarily have been visible on video). In other words, video evidence
“blatantly contradicts” a party’s account of what occurred off camera, only if what is
depicted on the video footage is necessarily inconsistent with that account.
A second, related principle also comes into play on the facts here. According to
the Sixth Circuit, “that a recording blatantly contradicts a party’s exact version of the
events, or certain parts of his version, is not alone fatal at summary judgment. A
recording must blatantly contradict a party’s entire version of events in material
respects to each claim.” Hanson v. Madison Cnty. Det. Ctr., 736 F. App’x 521, 527 (6th
Cir. 2018). Accordingly, “[e]ven if part of a party’s testimony is blatantly contradicted
by an audio or video recording, that does not permit the district court to discredit his
entire version of the events.” Id. (quoting Coble v. City of White House, 634 F.3d 865,
870 (6th Cir. 2011)). In Hanson itself, for example, the Sixth Circuit concluded that
video footage did not “blatantly contradict” the plaintiff’s entire narrative that
officers’ use of pepper spray during a one-minute interaction in his jail cell was
gratuitous because the cause of his cell door opening was not fully visible to the
camera, even though the footage captured much of what happened and contradicted
parts of his story. Id. at 536. Similarly, in Green v. Throckmorton, the Sixth Circuit
determined that video footage did not blatantly contradict a plaintiff’s account of
20
arrest without probable cause during a traffic stop in part because the video did not
“clearly depict” the plaintiff’s performance on sobriety tests the officer administered.
681 F.3d 853, 859, 865 (6th Cir. 2012).
The combination of those two principles dooms Johnson’s efforts to establish a
blatant contradiction here. Johnson concedes that he and Luke were alone and off
camera for approximately two-and-a-half minutes. In other words, the key events
occurred off camera, creating a hurdle for his blatant-contradiction argument right
from the start. And there is no obvious or inherent contradiction between the sexual
assault that Luke claims occurred off camera, and what is depicted on camera. To be
sure, a jury would need to find that a lot of things happened quickly during that short
period of time, and that Johnson composed himself quickly after the alleged event,
but what is depicted on camera does not render the central aspects of Luke’s account
impossible.
Johnson tries to overcome that problem by pointing to several inconsistencies
between Luke’s story and what is depicted. For example, while Luke claimed she saw
two sets of boots in the doorway, the video shows that no one is standing in the
doorway during the key two-and-a-half-minute stretch here. (Def. Mot. for Summ. J.,
Doc. 102, #2579; Def. Repl., Doc. 120, #3580). Likewise, her account about waking up
during the assault appears inconsistent with Luke’s wakeful, ambulatory state
moments before entering her cell with Johnson as depicted on the video. (Def. Mot.
for Summ. J., Doc 102, #2579). Moreover, Johnson argues, the video footage blatantly
21
contradicts Luke’s claim that she was sexually assaulted because it fails to capture
any images or sounds suggestive of sexual assault. (Id.).
The problem for Johnson is that the portion of the events depicted on the screen
are not central to Luke’s account. The alleged wrongdoing itself occurred inside the
cell, which all agree is not depicted on the video footage. Whether other officers were,
or were not, in the doorway at the time is not a material part of Luke’s claim. And,
the apparent discrepancy between Luke’s claim that she woke up during the assault,
as compared to her apparent wakefulness and ability to walk on the video footage,
may be explained, Luke says, by the fact that she was taking Tegretol. She points to
evidence that one side effect of that drug may be to induce seizures that cause a
“continuous confusional awake state.” (Pl. Opp., Doc. 112, #3450 (citing McKee Dep.,
Doc. 108, #3116)).
Accordingly, the Court finds that the video evidence does not “blatantly
contradict” Luke’s claim that Johnson sexually assaulted her. As Johnson appears to
admit, there is no footage that shows what happened between Johnson and Luke
when they were alone together in holding cell 1. (See Def. Repl., Doc. 118, #3579)
(“Sergeant Johnson is off camera for approximately two minutes and thirty
seconds…”). At most, the video blatantly contradicts portions of her testimony (like
the two sets of boots). But “that does not permit the district court to discredit [her]
entire version of the events.” Hanson, 736 F. App’x. at 527 (quoting Coble, 634 F.3d
at 870). In short, Johnson’s arguments ultimately amount to various factual
inferences favorable to Johnson that a jury might draw from what the video footage
22
does show. As before, the Court need not opine about the persuasiveness of those
inferences. It is enough to note that Johnson’s arguments ultimately go to Luke’s
credibility and to the believability of her account, rather than to the existence of a
genuine dispute of material fact. As such, they are not a basis for disregarding the
entirety of Luke’s testimony and granting summary judgment to Johnson.
As for “sounds of an assault,” the Sixth Circuit has similarly considered that
“[t]he lack of sound on an audio recording cannot be reliably used to discount [the
plaintiff’s] testimony.” Coble, 634 F.3d. at 869. The Sixth Circuit reasoned that
“[m]any factors could affect what sounds are recorded, including the volume of the
sound, the nature of the activity at issue, the location of the microphone, whether the
microphone was on or off, and whether the microphone was covered.” Id. Johnson
does not address these factors in his Motion for Summary Judgment, nor does
Johnson develop the argument from absence of sound beyond merely mentioning it
in support of the more general argument that the footage blatantly contradicts Luke’s
account. At oral argument, Johnson did refer to some other instances where the audio
captured exchanges among inmates and officers in the booking area. Nevertheless,
for the Court to rely on the claimed absence of audio suggestive of sexual assault
would require the Court to assume that any sexual assault of Luke by Johnson
necessarily would have made sounds that the audio portion of the video evidence
would have captured. That factual assumption would not be appropriate at the
summary judgment stage, at least in the absence of a more developed record and
briefing regarding the issue.
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For these reasons, the Court finds that neither the video nor the audio footage
in the record blatantly contradicts Luke’s claim that Johnson sexually assaulted her
in a holding cell.
Because Luke’s testimony in combination with other evidence in the record
would be sufficient to create a genuine dispute of material fact in the absence of
blatant contradiction by video evidence, and because the Court has determined that
there is no such blatant contradiction in this case, the Court concludes that there is
a genuine dispute of material fact as to whether Johnson sexually assaulted Luke
that precludes summary judgment.
D.
Johnson Has Not Established A Defense Of “Qualified Immunity” Or
Statutory Immunity.
Separately, Johnson repeatedly and prominently invokes the concept of
“qualified immunity” in support of his Motion for Summary Judgment. (See Def. Mot.
for Summ. J., Doc. 102, #2574). That is puzzling. As should be clear by now, the live
dispute in this case concerns whether Johnson sexually assaulted Luke. If a factfinder
were to determine that Johnson in fact did so, it is difficult to imagine how qualified
immunity, a defense based on lack of clearly established law, could save him. As
Plaintiff notes, the principle that sexual assault by an officer violates constitutional
rights is about as clearly established as it gets. See, e.g., Rafferty v. Trumball Cnty.,
Ohio, 915 F.3d 1087, 1095 (6th Cir. 2019). On the other hand, if a factfinder were to
determine that Johnson did not commit the alleged sexual assault, then Johnson
would not need (or receive) qualified immunity, rather he would win on the merits.
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At oral argument, Johnson’s counsel clarified that Johnson is not claiming that
he is entitled to qualified immunity if he in fact assaulted Luke. Rather, his only
“qualified immunity argument” was that the undisputed facts show that he did not
do so. For the reasons just discussed, this argument does not sound in qualified
immunity. Thus, the Court finds that Johnson is not entitled to summary judgment
based on the affirmative defense of qualified immunity.
The same logic applies to Johnson’s argument against Luke’s state-law battery
claim based on Ohio statutory immunity. In his Motion, Johnson argues that he
would be entitled to statutory immunity because he “did not act maliciously,
wantonly, recklessly, or in bad faith.” (Def. Mot. for Summ. J., Doc. 102, #2590 (citing
Ohio R.C. § 2744.03(A)(6)(a)–(c))). But again, that all depends on whether the
factfinder concludes by a preponderance of the evidence that Johnson sexually
assaulted Luke. If no, then Johnson needs no further defense. If yes, then the Court
struggles to see how such sexual assault would not be (for example) “malicious,”
“wanton,” or “in bad faith,” under the Ohio statute, at least absent more significant
development of this argument than Johnson provides in his briefing. The Court
therefore rejects the argument that Johnson is entitled to summary judgment on his
state-law battery claim based on Ohio’s immunity statute.
E.
Johnson Has Not Established His Statute-of-Limitations Defense With
Respect to Plaintiff’s Excessive Force Claim.
Finally, Johnson argues that some of Luke’s claims are barred by the statute
of limitations because they were not alleged in her complaint in the earlier action
filed in 2015. (Def. Mot. for Summ. J., Doc. 102, #2586–87). Luke has indicated,
25
however, that she will drop all but one of the claims to which this argument applies,
including any remaining official capacity claims. (Pl. Opp., Doc. 112, #3454–55).
Accordingly, Luke’s excessive force claim against Johnson in his individual capacity
is the only live claim to which this argument pertains. (Pl. Opp., Doc. 112, #3455).
Johnson argues that the excessive force claim is barred by the two-year statute
of limitations in Ohio Revised Code § 2305.10. (Def. Mot. for Summ. J., Doc. 102,
#2586). He concedes that, under Ohio’s saving statute, the excessive force claim would
relate back to the filing of the original complaint (and thus be timely) if the two suits
are “substantially the same.” (Id. at #2587). But he claims that standard is not met
here because the 2015 complaint sued Johnson (along with all the other defendants)
solely in their individual capacities, while the operative Complaint in this case sues
all defendants in both their individual and their official capacities. Johnson correctly
notes that an official-capacity suit amounts to a claim against the defendant’s
employer—here, Warren County. (See id. at #2586 (citing Alkire v. Irving, 330 F.3d
802, 810 (6th Cir. 2003))). And, adding a new defendant, Johnson further argues,
means that, as a matter of law, the two actions are not “substantially the same.” (Id.
at #2587).
As a general matter, two suits are “substantially similar” for purposes of Ohio’s
relation-back statute if the claims set forth in the second suit arise out of the same
operative facts as the claims in the first suit, and the nature of the claims in the first
suit suffice to put the defendant on notice. See Stone v. N. Star Steel Co., 786 N.E.2d
508, 512 (Ohio Ct. App. 2003) (“A new complaint is substantially the same as the
26
original complaint for purposes of the saving statute when the new complaint differs
only to the extent that it adds new recovery theories based upon the same factual
occurrences …”). Johnson is correct that adding a new party generally means that
the suits are not substantially similar for relation-back purposes, but that principle
applies to the party that is added, not the parties who were already present in the
previous suit. See Eaves v. Strayhorn, No. 1:09-cv-00394, 2010 WL 2521449, at *8
(S.D. Ohio June 15, 2010) (defendants sued only in official capacity in first suit could
not be sued in individual capacity in subsequent suit, but statute of limitations did
not bar the second suit’s official capacity claims). The idea is that a claim against
Party A would not necessarily put Party B on notice of the suit. Thus, Warren County
could rely on that principle to resist being added to this new suit. But Luke has agreed
to drop her official-capacity claims, meaning she is not objecting to Warren County’s
dismissal. (Pl. Opp., Doc. 112, #3454–55). Accordingly, the new-party principle has
little operative effect here.
In terms of the claims against Johnson, the excessive force claim arises out of
exactly the same set of facts on which the earlier sexual assault claim is based.
Moreover, the damages, if any, presumably would be identical. Thus, the new claim
is substantially similar to the previous claims, and it relates back.
In any event, ruling one way or the other has little practical import here. As
noted, the excessive force claim and the sexual assault claim are essentially identical,
both in terms of proof and of damages. If Luke succeeds on one, she would succeed on
the other, and if she fails on one, she necessarily fails on the other. Accordingly, the
27
Court rejects Johnson’s argument that the statute of limitations bars Luke’s excessive
force claim.
CONCLUSION
For the foregoing reasons, the Court DENIES Johnson’s Motion for Summary
Judgment (Doc. 102) with respect to Luke’s individual-capacity claims against
Johnson arising out of alleged sexual assault. The Court GRANTS Johnson’s motion
with respect to all of Luke’s claims not arising out of Johnson’s alleged sexual assault,
as well as any remaining official capacity claims against Johnson.
SO ORDERED.
September 29, 2021
DATE
DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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