Billups v. John Doe #1 et al

Filing 58

ORDER granting in part and denying in part 46 Motion for Summary Judgment. GRANTING Defendants Motion for Summary Judgment on Plaintiffs Fourth Amendment claim for unreasonable seizure; DENYING the Motion for Summary Judgment on Plaintiffs Fourth Amendment claim for excessive force on the ground that Carter is not entitled to qualified immunity; and GRANTING Defendants Motion for Summary Judgment on Plaintiffs official-capacity claim, her Fourth Amendment claim for unlawful seizure, and her Fifth, Eighth, and Fourteenth Amendment claims. Signed by Judge Algenon L. Marbley on 7/22/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RHONDA BILLUPS,

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Plaintiff,
v.
OFFICER KYLE SCHOLL, et al.,
Defendants.

Case No. 2:13-CV-258
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
This matter comes before the Court for consideration of Defendant JaQue Carter’s
Motion for Summary Judgment. (Doc. 46.) For the reasons that follow, the Court GRANTS in
part and DENIES in part Defendant’s Motion for Summary Judgment.
I.

BACKGROUND

A. Factual Background
At 6:50 p.m. on March 19, 2011, the Columbus Division of Police (“CDP”) Dispatch
received a 911 call from a woman identified only as Maggie. (Dispatch Report, Doc. 52-1, Ex.
A at 1.) She reported four or five black females riding near East Mound Street and Linwood
Avenue in a gold car and stated that one of the women had a gun and was threatening Maggie’s
son. (Id.) She told the dispatcher that she would be standing on the aforementioned corner when
the officers arrived. (Id.) One minute later, three patrol officers in two CDP vehicles were
dispatched to the scene and given the description of the car and its occupants. (Affidavit of
Wendy Massey, Doc. 46-34 at ¶ 9.) A minute after that, Officers JaQue Carter, Heath Gillespie,

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and Frank Lemak1 observed three black females in a four-door tan Pontiac Bonneville traveling
westbound on East Fulton Street near the intersection of Wilson Avenue. (Id. at ¶ 10; Affidavit
of JaQue Carter, Doc. 46-31 at ¶ 8; Affidavit of JaQue Carter, Doc. 46-33 at ¶ 6; Dispatch
Report, Doc. 52-1, Ex. A at 1.) The Bonneville was owned by Billups’ friend, Angela Burke.
(Deposition of Rhonda Billups, Doc. 40 at 15.)
Officers Gillespie and Carter initiated a traffic stop of the Bonneville near the intersection
of East Fulton Street and Linwood Avenue, approximately one block west and one block south
of the intersection of East Mound Street and Linwood Avenue.2 (Gillespie Aff., Doc. 46-33 at ¶
6; Deposition of Rosemary Cole, Doc. 44 at 21; Billups Dep., Doc. 40 at 16.)
Billups was driving the car and her two passengers were Rosemary Cole, seated in the
front seat, and a woman in the backseat known to Billups and Cole only as Mieka. (Billups
Dep., Doc. 40 at 10-11, 12-14; Cole Dep., Doc. 44 at 18.) Officers Carter and Gillespie exited
their vehicle with their guns drawn and one of the officers yelled “Put your hands up. Don’t
move.”3 (Id. at 22; Billups Dep., Doc. 40 at 17, 29-30; Gillespie Aff., Doc. 46-33 at ¶ 13.)
Because they suspected that one of the car’s occupants was armed, they treated the stop as a
felony stop rather than a typical traffic stop. (Deposition of JaQue Carter, Doc. 42 at 9-10.) In a

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Billups and Cole both testified that there were three officers at the scene of the stop and the
incident report reflected that three officers were present. Officers Carter and Gillespie could not
recall whether another officer arrived on the scene after they did, although Officer Carter says he
believe that Officer Lemak did arrive at some point to assist. (See Carter Aff., Doc. 46-31 at ¶
37; Gillespie Aff., Doc. 46-33 at ¶¶ 12, 26.) Officer Lemak was not deposed in this case.
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The officers recalled that the stop occurred near the intersection of East Fulton Street and
Wilson Avenue, which is one block from the intersection that Maggie identified. (Carter Aff.,
Doc. 46-31 at ¶¶ 10-11.)
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Officer Carter submitted an affidavit stating that he and Officer Gillespie did not have their
guns drawn as they approached the car, but this testimony is contradicted not only by Billups,
Cole, and Officer Gillespie but also by Officer Carter’s own deposition testimony, in which he
admitted he had his gun drawn. (Carter Aff., Doc. 46-31 at ¶ 21; Carter Dep., Doc. 42 at 9-10.)
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felony stop, officers draw their guns on a car’s occupants and one of them orders the person out
of the vehicle. (Id. at 9.)
Mieka began to scream in fear when the officers trained their guns on the three women.
(Cole Dep., Doc. 44 at 22.) Officer Carter, who was pointing his gun at Billups, told her to put
her hands on the steering wheel.4 (Id.; Billups Dep., Doc. 40 at 30.) Next, he “grabbed . . .
Billups out of the car” in a manner that Cole described in her deposition as “n[o]t nice” and
“really rude and nasty.” (Cole Dep., Doc. 44 at 22, 23-24.) According to Billups and Cole, after
Officer Carter pulled Billups out of the car while pointing his gun at her, he handcuffed her. (Id.
at 26, 32.) Cole said that he “grabbed [Billups] up” and “shoved a little.” (Id. at 30.) Both Cole
and Billups acknowledged that Officer Carter did not “slam” her against the car but Cole said he
pushed her against it. (Id.; Billups Dep., Doc. 40 at 27.) Billups, however, did not say that he
pushed her against the car, and attested that the only instances of force against her during the
incident were Officer Carter pulling her from the car and walking her to the sidewalk while
holding onto her arms. (Id.) Billups specifically recalled that Officer Carter had “snatched” her
out of the car, “yanked” her, and “was kind of rough” while they were walking onto the
sidewalk. (Id. at 25-26.) After she was on the sidewalk, Officer Carter instructed Billups to get
into the police cruiser, and Billups refused, explaining to Officer Carter that she had recently had
surgery—a hysterectomy—which would prevent her from getting into the cruiser. (Cole Dep.,
Doc. 44 at 23, 33.) Officer Carter persisted in ordering her to get in the vehicle but she
continued to refuse. (Id.) Billups admitted that she did not tell Officer Carter about the surgery,
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Billups testified that the only black officer is the one who pointed his gun at her and pulled her
out of the car. (Billups Dep., Doc. 40 at 23.) Carter is black and Lemak and Gillespie are white.
Cole testified that all three officers at the scene were white (Cole Dep., Doc. 44 at 27) but Carter
acknowledges that he was at the scene and the police report corroborates his presence. (Dispatch
Report, Doc. 52-1 at 1.) Moreover, Carter admitted to being the officer who removed Billups
from the car. (Carter Dep., Doc. 42 at 27.)
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or the stitches on her stomach, until after he had pulled her out of the car. (Billups Dep., Doc. 40
at 25, 49.) Officer Carter’s gun was trained on Billups throughout the encounter. (Cole Dep.,
Doc. 44 at 32.) Because she repeatedly refused to get in the car, the officer left Billups on the
sidewalk. (Billups Dep., Doc. 40 at 17.)
In the meantime, Cole was telling Mieka to calm down. (Cole Dep., Doc. 44 at 22.) The
other officers asked Cole and Mieka to get out of the car and, when they complied, handcuffed
them. (Id.; Billups Dep., Doc. 40 at 18, 24.) Unlike Billups, the other two women were asked to
get out of the Bonneville rather than pulled out. (Cole Dep., Doc. 44 at 26.) Cole and Billups
both said the officers did not question them but the women repeatedly asked the officers why
they had been pulled over and they received no answer. (Id. at 23.) The officers also told Cole
and Mieka to get into one of the police cruisers. (Id.) Cole said she could not get into the cruiser
because she was too big to get in. (Id.; Billups Dep., Doc. 40 at 18.) Mieka, still screaming, got
into the cruiser as instructed. (Cole Dep., Doc. 44 at 23.)
One of the officers asked Billups for her name, although he did not ask to see
identification, then huddled with the other officers, returned to the cruiser, and released all three
women. (Id.; Billups Dep., Doc. 40 at 27-28.) Billups stated that the officer did not ask for her
name until “towards the end” of the encounter after she had been standing on the sidewalk for
awhile. (Billups Dep., Doc. 40 at 17.) In her narrative of the incident, she did not indicate that
she saw the officers search the Bonneville. (See id. at 28.)
Carter stated that he never touched Billups when he instructed her to get out of the car
and that the officers did not pat down the women but did search the car for weapons while the
women were standing on the sidewalk, although he could not remember which officer conducted

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the search.5 (Carter Dep., Doc. 42 at 27, 12, 14-15.) Cole testified that the officers did not
search the car. (Cole Dep., Doc. 44 at 23.) He testified that no officer had his gun trained on the
women while they were on the sidewalk. (Carter Dep., Doc. 42 at 12.) The CDP’s protocol for
patting down female detainees is to summon a female officer to do the pat-down, although if a
male officer feels threatened, he may pat down a female suspect himself. (Id. at 13-14.)
In an affidavit, Officer Gillespie stated that he and Officer Carter approached the
Bonneville with guns drawn, ordered all three occupants of the Bonneville to put their hands
where the officers could see them, instructed them to exit the car, and then ordered them to stand
on the sidewalk. (Id. at ¶ 14.) He recalled that neither he nor Carter ever handcuffed any of the
women or placed them in a cruiser and that they felt no need to pat the women down because the
women complied with their orders, wore clothing that was unlikely to conceal a weapon, and
appeared to be over the age of 30. (Id. at ¶¶ 19-20.)
At 6:59 p.m., less than seven minutes after they spotted the Bonneville and initiated the
stop, the officers called into dispatch, indicated that they had made no arrests, and stated that
they would contact Maggie. (Massey Aff., Doc. 46-34 at ¶ 12.) At 7:03 p.m., they called the
dispatcher again to relay that the only additional information they had received from Maggie was
that the suspect vehicle was a gold Impala. (Id. at ¶ 15; Carter Aff., Doc. 46-31 at ¶ 38; Dispatch
Report, Doc. 52-1 at 2.)
Billups had pain in her stomach as a result of the incident but did not seek medical
treatment for any injuries. (Billups Dep., Doc. 40 at 20, 49.) She testified in her deposition that
she experienced depression after the incident and that she still feels depressed and has

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Carter later recalled in his affidavit that he stood cover, meaning “kep[t] an eye on the
Bonneville’s occupants,” while Officer Gillespie swept the Bonneville for weapons. (Carter
Aff., Doc. 46-31 at ¶ 24.)
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nightmares about the gun being drawn on her, preventing her from sleeping. (Id. at 18-20.) She
takes medication for her depression. (Id. at 19.) She also testified that her doctor had diagnosed
her with post-traumatic stress disorder although submitted no medical records to that effect. (Id.
at 54.)
Four months after the incident, on July 18, 2011, Billups went to the CDP Internal Affairs
Bureau (“IAB”) to lodge a complaint about the incident. (Id. at 30.) Sergeant Jeff Podolski
interviewed her and she recounted her story, specifically taking issue with Officer Carter’s
training his gun on her and refusing to tell her why she was stopped, but not mentioning that he
handled her roughly when pulling her out of the car. (Id. at 37.) In response to a question from
Sergeant Podolski about why she waited four months to go to the IAB, she responded that she
had been recovering from her hysterectomy and was also not sure about the proper way to file a
complaint. (Id. at 37-38.) She eventually heard from some people she knew that the first step in
filing a complaint was to go to IAB, so she did. (Id. at 38.) Billups’ brother is a CDP officer,
which she told Sergeant Podolski that she had informed Officer Carter after he stopped her. (Id.
at 34.) She did not ask her brother for assistance in contacting the CDP to file a complaint. (Id.
at 38.) At the conclusion of the interview with Sergeant Podolski, he told Billups that the
Internal Affairs Bureau would not conduct a “complaint investigation” because more than 60
days had elapsed since the incident and the officers’ conduct was not criminal in nature. (Id. at
39.) Billups asked for a record of the stop and Sergeant Podolski told her where she could go to
request that record, which she said she had previously been told she would not be able to obtain
because she was not arrested. (Id. at 40-42.)
At Sergeant Podolski’s suggestion, Billups visited the Public Records Unit of CDP that
same day. (Public Records Request, Doc. 46-1.) She requested a patrol record for the March 19,

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2011 traffic stop and wrote “Carter” under the space for “Investigative Detective/Unit” on the
request form. (Id.) Although CDP Public Records Officer Amy Morris, who processed the
request, did not find any responsive records in her first few searches because Billups’ name did
not appear on any reports, she eventually contacted Billups on the telephone to learn more details
about the incident and was able to find a report on the stop. (Affidavit of Amy Morris, Doc. 4636 at ¶¶ 15-18.) On August 2, 2011, Officer Morris notified Billups that the report was
available, and Billups picked it up on August 17, 2011. (Id. at ¶ 25; Public Records Invoice,
Doc. 46-5.) The Computer Aided Dispatch Report that CDP gave to Billups did not contain the
names of any officers. (Docs. 46-2; 46-3.)
On February 9, 2012, Billups submitted another request for documents to the Public
Records Unit. (Public Records Request, Doc. 46-6.) This time, she requested a “[c]opy of
printout from IAB.” (Id.) The Public Records Unit made her IAB intake report available the
next day and she picked it up four days later. (Affidavit of Jo Anne Cunningham, Doc. 46-32 at
¶¶ 31-33; Doc. 46-7.) It did not contain the names of any officers. (Id.)
On August 22, 2012, Billups’ attorney, W. Jeffrey Moore, sent a public records request to
CDP requesting the following: “any information regarding Rhonda Billups, including all medical
records, injury records, jail reports, etc. Specifically any and all records regarding the stop on
March 19, 2011 at approximately 7 p.m.” (Doc. 46-9.) Records Technician William McPherson
processed the request6 but found no record responsive to the request and sent Moore a letter
explaining as such. (Doc. 46-10.) Because the Bonneville did not belong to Billups and Billups
was not arrested after the stop, he did not find any records with her name. Moore did not follow

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Moore’s letter was addressed to the CDP “Keeper of the Records,” and was forwarded to
McPherson in the Police Records Unit, a different department than the Public Records Unit.
(Affidavit of William McPherson, Doc. 46-35 at ¶¶ 2, 6.)
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up immediately with CDP after receiving McPherson’s letter. Eventually, Moore hired a private
investigator, who submitted a records request on November 5, 2013 for the names of the officers
and also spoke with Officer Morris, whom he knew personally. (Public Records Request, Doc.
52-1, Ex. F; Affidavit of W. Jeffrey Moore, Doc. 52-2 at ¶¶ 4-5.) Billups also submitted her own
request to CDP on that same day. (Public Records Request, Doc. 52-1, Ex. G.)
B. Procedural History
Plaintiff filed a complaint against six John Doe Defendants on March 19, 2013. (Doc. 1.)
After Plaintiff failed to effect timely service on Defendants, she asked the Court to grant her an
extension of time to amend her complaint and effect service, explaining that she suffered from a
mental illness that interfered with her ability to discover Defendants’ identities. (Doc. 4 at 1-2.)
The Court ordered Plaintiff to substitute the proper Defendants and effect service by November
18, 2013. (Doc. 5 at 1-2.)

On November 14, 2013, Plaintiff filed her amended complaint

against Officers Lemak, Carter, Gillespie, and Kyle Scholl. (Doc. 6.) Service was not complete
until December 20, 2013. (Doc. 8.) Defendants filed a motion to dismiss the amended
complaint for insufficient service and failure to state a claim upon which relief could be granted
on statute-of-limitations grounds. (Doc. 9.)
On September 29, 2014, the Court denied Defendants’ motion to dismiss. (Doc. 15.)
First, the Court found that Plaintiff showed good cause for why service was not made within the
required time period under Federal Rule of Civil Procedure 4(m) because the CDP “practically
played a shell game with Plaintiff when she diligently tried to” obtain the names of Defendants,
which were “uniquely within CDP’s control.” (Id. at 5-6.) Second, the Court denied the motion
to dismiss under Rule 12(b)(6). (Id. at 9.) Ohio Revised Code § 2305.10 requires a cause of
action under 42 U.S.C. § 1983 to be brought within two years. Although Plaintiff filed her

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complaint less than two years after the incident giving rise to the claims, she did not name
Defendants until November 14, 2013, more than two years after the March 19, 2011 incident. As
the Court explained in its order denying the motion to dismiss, the only exceptions to the twoyear filing requirement are: (1) when a claim relates back to the original filing date; and (2) when
the statute of limitations is equitably tolled. (Id. at 6.) The Court found that the claim against
Defendants did not relate back to the original complaint but that the statute of limitations should
be equitably tolled:
Plaintiff argues that Defendants withheld public records and thus this Court should find
that the statute of limitations tolled. (Doc. 13 at 6.) In fact, the CDP is in the unique
position in that they alone had access to this information. Plaintiff could not have
discovered this information without disclosure from the CDP. This situation is analogous
to . . . Spitsyn and Robertson because Plaintiff did not have the ability to name the
Officers without the cooperation of the CDP. The situation is similar because the
plaintiffs in those cases did not have the ability to pursue claims when their attorneys
effectively prohibited them from doing so. Furthermore, Plaintiff made three public
record requests with the CDP for information relating to the incident between July 2011
and August 2012. (Doc. 13 at 4-5.) These requests demonstrate that Plaintiff pursued her
rights diligently. Plaintiff is entitled to equitable tolling because the CDP did not provide
the names of Officers to Plaintiff in a timely manner even though Plaintiff diligently
pursued her rights.
(Id. at 9.)
The parties subsequently stipulated to the dismissal without prejudice of Defendants
Scholl, Lemak, and Gillespie, leaving Carter as the sole remaining Defendant. (Doc. 25.)
During the course of discovery, a dispute arose over whether the Court had conclusively
decided the equitable-tolling issue at the motion-to-dismiss stage of litigation or whether
discovery was appropriate on this issue in order for Defendant to contest equitable tolling on
summary judgment. Carter filed a motion to compel discovery and for leave to depose Billups’
counsel, W. Jeffrey Moore. (Doc. 29.) Billups opposed the motion and also moved for a
protective order asking the Court to prohibit discovery related to the untimeliness defense.

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(Docs. 28, 30.) In a March 10, 2015 Opinion and Order, the Magistrate Judge found that because
the Court did not give notice under Federal Rule of Civil Procedure 12(d) that it was treating
Defendants’ motion to dismiss on the timeliness issue as one for summary judgment under
Federal Rule of Civil Procedure 56, the Court had not foreclosed Defendant from pursuing his
statute-of-limitations defense beyond the motion-to-dismiss stage of the litigation. (Doc. 34 at
7.) The Magistrate Judge denied Plaintiff’s motion for a protective order, granted Defendant’s
motion to compel, and granted Defendant’s request for leave to depose Moore, limited to the prelitigation attempts Moore or anyone acting on his or Billups’ behalf took to learn of the officers’
identities. (Id. at 11.) The parties later stipulated that Plaintiff “and her representatives have
alerted the defendant and/or his counsel to every attempt or action taken to find out who the
officers involved in the traffic stop of Ms. Billups were.” (Doc. 46-28.)
Defendant Carter filed this motion for summary judgment. (Doc. 46.) He asserts that
Plaintiff’s claims are barred by the statute of limitations and, in the alternative, that he is entitled
to qualified immunity on Plaintiff’s constitutional claims.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is

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insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d
577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The mere existence of a scintilla of evidence in support
of the opposing party’s position will be insufficient to survive the motion; there must be
evidence on which the jury could reasonably find for the opposing party. See Anderson, 477
U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995).
III.

ANALYSIS

A. Equitable Tolling
Ohio law requires that an action brought under 42 U.S.C. § 1983 be commenced within
two years after “the plaintiff knows or has reason to know of the injury which is the basis of
[her] action.” Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005); see Ohio Rev. Code §
2305.10(A). The traffic stop occurred on March 19, 2011, so the appropriate filing deadline was
March 19, 2013. Plaintiff filed her complaint on that date but did not name a defendant until
November 14, 2013. Although the Court denied Defendant’s motion to dismiss Plaintiff’s
complaint as barred by the statute of limitations in its September 29, 2014 order, the Court now
considers this argument with the benefit of the developed factual record on summary judgment.

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A plaintiff is entitled to equitable tolling of a statute of limitations “when a litigant’s
failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that
litigant’s control.” Lauderdale v. Wells Fargo Home Mortg., 552 F. App’x 556, 570 (6th Cir.
2014) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 56061 (6th Cir. 2000)). The party seeking equitable tolling, in this case Plaintiff, bears the burden to
show she meets its requirements. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). To
do so, she must show “(1) that [s]he has been pursuing [her] rights diligently, and (2) that some
extraordinary circumstance stood in [her] way’ and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In the
absence of “compelling equitable considerations, a court should not extend limitations by even a
single day.” Graham-Humphreys, 209 F.3d at 561. Equitable tolling “is a fact-intensive inquiry
best left to the” trial court. Robertson, 624 F.3d at 785-86.
Defendant argues that Plaintiff did not pursue her rights diligently and that no
extraordinary circumstance prevented her from timely filing because she never specifically asked
for the names of the involved officers. (Doc. 46 at 27-29.) Since her original request expressly
identified “Carter,” Defendant contends that it was reasonable for CDP to believe that she
already knew the names of the involved officers. (Id. at 27.) Moreover, she never followed up
after CDP produced information, indicating she did not find that information incomplete. (Id. at
28.) Defendant also notes that Billups could have asked her brother, a CDP officer, for
assistance in the process, pursued pre-litigation discovery of the names under Ohio Revised Code
§ 2317.48 and Ohio Rule of Civil Procedure 34(D), or filed the complaint against “Officer
Carter” and other Doe defendants. (Id. at 29.)

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Plaintiff responds that her mental-health issues prevented her from communicating
effectively with her attorney. (Doc. 52 at 8.) She suggests that requests for “all records”
pertaining to the stop would reasonably include the names of the officers who conducted the
stop. (Id.) Finally, she insists that CDP “purposely” hid the names of Defendant and other
officers. (Id. at 13-14.)
There is no evidence that Defendant redacted the names of any officers or purposely hid
the names to avoid litigation. And the fact that Billups wrote Defendant Carter’s last name on
her first request might suggest that she already knew his full name. But Plaintiff made several
records requests and diligently followed up to obtain them. She even continued to do so after
one of her requests yielded no response after it was directed to the Police Records Unit, which
apparently does not communicate with the Public Records Unit that had already processed a
previous request from Billups. (See McPherson Aff., Doc. 46-35; Morris Aff., Doc. 46-36.)
Although the records were neither detailed nor specific, the Court finds that a reasonable jury
could believe that she had exercised due diligence, particularly because she was dealing with
mental-health challenges during this period and may have lacked a sophisticated understanding
of how to file a records request.
Although Defendant makes much of the fact that the cases on which Plaintiff relies to
support her argument for equitable tolling present egregious instances of attorney misconduct
that distinguish them from this case, the Court finds that these cases stand for the proposition that
equitable tolling is appropriate when the plaintiffs did not have the ability to obtain information
vital to their claims. See Robertson, 624 F.3d at 786; Spitsyn v. Moore, 345 F.3d 796, 802 (9th
Cir. 2003). Here, too, construing the evidence in her favor, Plaintiff could not obtain the names
of the officers without CDP providing them, and she attempted several times to do so.

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Moreover, even though there is no evidence that CDP purposely withheld the officers’ names,
there is evidence in the record that CDP staff knew that Billups was considering litigation against
the officers, and that, at the very least, Officer Morris knew Officer Carter’s name because she
contacted him when responding to the request. (See Morris Aff., Doc. 46-36 at ¶¶ 18, 20, 31.)
Given that CDP is presumably quite familiar with requests for record relating to possible
litigation because such litigation is not infrequent, it would be reasonable for a jury to conclude
that CDP records technicians would include the names of officers in a request for records
relating to a police encounter. A jury could also find that it is unreasonable for none of the many
CDP officials Billups contacted to have explained to her that her name would not have appeared
in the traffic stop record because she was not arrested and did not own the Bonneville. Such an
explanation could have enabled her to target her search more precisely in future requests and
timely file her lawsuit.
Because only CDP had access to the information regarding the names of the officers who
conducted the stop and Billups repeatedly attempted to obtain information related to the stop, the
Court finds that there is a genuine issue of material fact regarding whether the two-year statute of
limitations should be equitably tolled. Therefore, summary judgment on this basis is not
appropriate and the Court proceeds to consider the merits of Plaintiff’s constitutional claims.
B. Qualified Immunity
Plaintiff brings a cause of action under 42 § U.S.C. § 1983 for violations of her Fourth,
Fifth, Eighth, and Fourteenth Amendment rights. Before delving into the merits of the parties’
arguments, the Court will dismiss three of these claims as non-cognizable on their face. First,
the Fifth Amendment applies only to federal actors and not state actors like Officer Carter. See
Scott v. Clay Cnty., Tenn., 205 F.3d 867, 873 n.8 (6th Cir. 2000). The Eighth Amendment

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applies only to post-conviction inmates. Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 495
(6th Cir. 2008). Finally, the Fourteenth Amendment protects pretrial detainees from the use of
excessive force, but it does not apply to claims arising from an arrest. Aldini v. Johnson, 609
F.3d 858, 865 (6th Cir. 2010). Rather, the Fourth Amendment governs a claim of excessive
force that “occurred in the course of an arrest or other seizure of the plaintiff,” as well as other
claims arising from a stop. Id. Plaintiff does not oppose the dismissal of her Fifth, Eighth, and
Fourteenth Amendment claims. The Court GRANTS summary judgment to Defendant on these
three claims and now turns to Plaintiff’s Fourth Amendment claim.
1. Legal Standard
To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed in his favor, demonstrate the deprivation of a right secured by the Constitution or laws
of the United States caused by a person acting under the color of state law. Sigley v. City of
Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006). The qualified-immunity doctrine “protects
government officials ‘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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). The plaintiff bears the burden to show that a defendant is not entitled to
qualified immunity. O’Malley v. City of Flint, 652 F.3d 662, 667 (6th Cir. 2011).
In considering a qualified-immunity defense, the Court considers first whether the facts
viewed in the light most favorable to Plaintiff show that Officer Carter violated her constitutional
rights. Id. at 232. Second, the Court determines whether the right in question was clearly
established at the time of the violation, that is, whether “the contours of the right are sufficiently
clear that a reasonable official would understand that what he is doing violates the right.”

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Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (internal quotation
marks, citation, and alterations omitted). The Court may conduct the address the two prongs of
the qualified-immunity analysis in either order. Pearson, 555 U.S. at 236.
Plaintiff alleges both excessive-force and unlawful-seizure claims against Officer Carter.
The Court will consider each in turn.
2. Unlawful Seizure
a. Constitutional Violation
The Fourth Amendment prohibits unreasonable seizures, including “brief investigatory
stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S.
266, 273 (2002). A brief investigatory stop, such as a traffic stop, does not run afoul of the
Fourth Amendment, however, when a law enforcement officer has “a particularized and
objective basis for suspecting the particular person stopped of criminal activity.” United States
v. Cortez, 449 U.S. 411, 417-18 (1981). The standard for determining whether the officer had
reasonable suspicion to conduct the stop “takes into account ‘the totality of the circumstances—
the whole picture.’” Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (quoting Cortez, 449
U.S. at 417). To establish reasonable suspicion, the government must be “able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion as measured by an objective standard.” United States v. ViteEspinoza, 342 F.3d 462, 466 (6th Cir. 2003) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).
Reasonable suspicion need not be based only “on the officer’s personal observation” but may
also take into account “information supplied by another person.” Navarette, 134 S. Ct. at 1688
(quoting Adams v. Williams, 407 U.S. 143, 147 (1972)). Reasonable suspicion is more than a

16

mere “hunch,” see Terry, 392 U.S. at 27, but less than probable cause, Smoak v. Hall, 460 F.3d
768, 778 (6th Cir. 2006).
Billups contests the reasonableness of the stop because the color of the Bonneville and its
number of occupants did not match the information the dispatcher gave the officers. (Doc. 52 at
11.) The Court finds that the officers had reasonable suspicion to stop the Bonneville. The
occupants of both cars were black females, even though the car described by Maggie carried four
or five women while Billups’ car contained only three. The officers spotted the car a mere two
or three minutes after the call and only a block or two from where Maggie had pinpointed its
location. Although the officers later found out from Maggie that the car was an Impala, at the
time of the stop they only knew it was “gold,” and gold and tan are similar colors, as Billups
herself even conceded. (Billups Dep., Doc. 40 at 45-46 (“Some people say it’s gold; some
people say it’s tan. . . . [I]t’s about the same color.”).)
Although not a perfect match, the Sixth Circuit has held that a stop is not unreasonable if
based on “a minor difference in reported color (silver v. ‘tannish’)” when the stop is “supported
by other physical similarities, as well as temporal and physical proximity to the reported crime.”
United States v. Atkins, 513 F. App’x 577, 580 (6th Cir. 2013). See also United States v. Hurst,
228 F.3d 751, 756-57 (6th Cir. 2000) (holding that a stop of a dark-blue Mercury Cougar with
three passengers was reasonable based upon a report of a dark-colored Ford Thunderbird with
two passengers fleeing the scene of a burglary, because of the car’s physical and temporal
proximity to the crime and the similarity of other physical features); United States v. Babb, 77 F.
App’x 761, 766 (6th Cir. 2003) (holding that a discrepancy between a report indicating a vehicle
with two persons and a stop of a vehicle holding only a driver “does not defeat the assessment of
reasonable suspicion” based on the totality of circumstances); United States v. Nance, No. 3:09-

17

cr-163, 2010 WL 4004782, at *10 (E.D. Tenn. Sept. 17, 2010) (“An investigatory stop may be
reasonable even if the vehicle does not perfectly match the description provided in a BOLO
report.”).
Because the Court finds no constitutional violation when Officer Carter stopped the
Bonneville, the Court need not determine whether any constitutional right was clearly
established, although the Sixth Circuit decisions in Atkins, Hurst, and Babb suggest that there is
no clearly established right only to be stopped under Terry if a dispatcher’s physical description
of a car and passengers is an exact match for the car and passengers stopped. The Court
GRANTS Defendant’s motion for summary judgment on Plaintiff’s unreasonable-seizure claim.
3. Excessive Force
a. Constitutional Violation
Plaintiff argues that Officer Carter violated her constitutional right to be free from
excessive force when he pulled her out of the car by both arms, roughly pushed her to the
sidewalk while pointing his weapon at her, and handcuffed her during the approximately sevenminute stop.
Claims of excessive force are analyzed under the Fourth Amendment’s “reasonableness”
standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness of a challenged
application of force “must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Id. at 396. The pertinent question is “whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at 397. The Court
must “carefully balance ‘the nature and quality of the intrusion on the individuals’ Fourth
Amendment interests against the countervailing governmental interests at stake.’” Kent v.

18

Oakland Cnty., 801 F.3d 384, 390 (6th Cir. 2016) (quoting Graham, 490 U.S. at 396). Relevant
factors to consider in evaluating the reasonableness of the force used include: “the relationship
between the need for the use of force and the amount of force used; the extent of the plaintiff's
injury; any effort made by the officer to temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (citing
Graham, 490 U.S. at 396).
The Sixth Circuit has held that “[d]uring a Terry stop, officers may draw their weapons or
use handcuffs ‘so long as circumstances warrant that precaution.’” Radvansky v. City of Olmsted
Falls, 395 F.3d 291, 309 (6th Cir. 2005) (quoting Houston v. Clark Cnty. Sheriff Deputy John
Does 1-5, 174 F.3d 809, 815 (6th Cir. 1999)). It is clear that “when police officers reasonably
fear that suspects are armed and dangerous, they may order the suspects out of a car and may
draw their weapons when those steps are ‘reasonably necessary for the protection of the
officers.’” Houston, 174 F.3d at 814-15 (quoting United States v. Garza, 10 F.3d 1241, 1246
(6th Cir. 1993)). See also United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986)
(upholding as reasonable officers’ stop of a car with weapons drawn when the officers
reasonably believed that its occupants were armed); Garza, 10 F.3d at 1244, 1246 (holding that it
was reasonable for officers to order the plaintiff out of his truck at gunpoint, handcuff him, and
place him in a police cruiser when the police believed that he was armed and dangerous and the
plaintiff was in a semi-truck, making it impossible for the officers to see the plaintiff inside the
elevated cab of the truck).

19

Similarly, an officer who reasonably believes that a suspect may be armed does not
violate the Fourth Amendment by using handcuffs during an investigative stop.7 See Hurst, 228
F.3d at 758 n.3 (“[U]nder the circumstances, where defendant was reasonably suspected of
having just burglarized a home and might reasonably have been deemed armed and dangerous,
the officers’ attempt to use handcuffs as a precautionary measure to secure their safety during the
vehicle search was not unreasonable or otherwise improper.”); Radvansky, 395 F.3d at 309
(holding that officers were justified in briefly detaining suspect with handcuffs when there was
evidence of forced entry of a residence); Garza, 10 F.3d at 1246. The Court finds that the
officers’ drawing of their weapons and use of handcuffs, standing alone, did not constitute
excessive force.
Officer Carter’s force against Plaintiff when he pulled her from the car by both arms and
roughly pushed her onto the sidewalk is another matter, however. The Supreme Court has said
that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's
chambers,” violates the Fourth Amendment. Graham, 490 U.S. at 396 (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). But the Fourth Amendment “only permits an officer
to use reasonable force to protect himself from a reasonable threat.” Aldini, 609 F.3d at 867.
The remaining question before the Court, then, is whether Officer Carter’s rough treatment of
Billups (in her version of events, which the Court credits for purposes of summary judgment)
violated her Fourth Amendment rights and, if so, whether this right was clearly established at the
time of the incident.
7

Officers Carter and Gillespie both recall that they did not handcuff any of the three occupants
of the Bonneville but merely ordered them to stand on the sidewalk as Gillespie searched the car
and Carter stood guard. On summary judgment, however, as Defendant’s counsel conceded at
oral argument, the Court is required to credit Plaintiff’s version of events, which, here, is also
corroborated by Cole’s testimony. Moreover, Officer Carter’s account of the search of the car is
internally inconsistent, as discussed infra.
20

Evaluating the factors articulated in Kingsley and Graham, the Court concludes that
Billups’ version of events shows that Officer Carter violated her constitutional right to be free
from excessive force because the physical force he used when pulling her out of the car was
unreasonable in light of the nature of the potential threat to him. Although Plaintiff did not have
significant physical injuries, she did testify that she had pain in her stomach after the incident,
and she also suffered from depression after the stop.8 (Billups Dep., Doc. 40 at 18-20.) See
Bolden v. City of Euclid, 595 F. App’x 464, 471 (6th Cir. 2014) (noting that the “extent of the
injury inflicted” is not “crucial to an analysis of a claim of excessive force,” but the absence of
injury to the plaintiff supports the conclusion that the force was not unreasonable) (quoting
Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 407 (6th Cir. 2009)). Neither officer
alleges that Billups resisted complying with his orders, see Kingsley, 135 S. Ct. at 2473, and this
mitigates in favor of a finding that grabbing her out of the car with both arms and shoving her
onto the sidewalk was not a proportional response to Plaintiff’s conduct. Moreover, it is
undisputed by either officer and by Cole and Billups that Officers Gillespie and Lemak did not
roughly handle Cole or Mieka but merely instructed them to get out of the car. Given that the
officers had no reason to believe that the two passengers were less likely to be armed than
Billups, a jury could certainly find that Officer Carter’s use of force against Billups was greater
than the amount of force necessary in this situation.
8

Although Billups makes much of the fact in her response in opposition to Defendant’s
summary-judgment motion that she had told Officer Carter that she had stitches from a
hysterectomy, she acknowledged in her deposition that she did not tell him about the surgery
until after he had removed her from the car and walked her in a rough manner onto the sidewalk.
(Billups Dep., Doc. 40 at 25-27, 49 (“Q: And the first time you told the officer about the
hysterectomy is when—after he put you on the sidewalk? A: Right, yes. Q: All right. And he
didn’t use any force against you after that— A: No.”).) Therefore, the Court concludes that a
reasonable officer would not have known about the surgery during the application of the force in
question and so does not factor Billups’ condition into its reasonableness analysis.
21

Finally, although Defendant argues that the “severity of the security problem at issue”
and “the threat reasonably perceived by the officer” militate in favor of a finding that the force
was reasonable here, Kingsley, 135 S. Ct. at 2473, the Court finds that the officers’ behavior does
not indicate that Officer Carter had a reasonable fear for his safety that justified roughly pulling
Billups out of the car and shoving her onto the sidewalk. First, as noted above, they did not pull
Cole or Mieka out of the car despite having no less reason to believe they, as opposed to Billups,
were armed. Second, there is inconsistent testimony in the record—which on summary
judgment must be construed in Plaintiff’s favor—as to whether the officers searched the car.9
Crediting Plaintiff’s account that they did not search the car, nor did they ask for Billups’
driver’s license or other identification or pat down the women, there is no evidence that the
officers had a reasonable fear for their safety. Indeed, neither officer disputed that Billups and
the other women were fully compliant with their orders, including the order to Billups to put her
hands on the steering wheel so the officers could see them. Under these circumstances, once the
officers had stopped the car and approached the women, the Court cannot say that the officers
had a reasonable fear for their safety that justified rough treatment of Billups in removing her
from the car. It strains the Court’s credulity that a reasonable officer who feared for his safety
would find it necessary to pull a suspect out of a car roughly and shove her but fail to question
her, ask for her identification, pat her down, or search her car.
The Court’s conclusion that Plaintiff’s version of the facts shows a constitutional
violation is consistent with Sixth Circuit case law that the physical removal of a suspect from the

9

Officer Carter first testified in his deposition that he could not remember who searched the car
but he thought that one of the officers on the scene did so. He later recalled in his affidavit that
Officer Gillespie searched the car while he stood cover. Neither Cole nor Billups testified that
any officers searched the car.
22

car is reasonable precisely because a plaintiff does not comply with officer commands. For
instance, in United States v. Jackson, the Sixth Circuit stated:
Here, on the side of a highway, at nearly 2:00 AM, suspecting that Jackson was
intoxicated, unable to ascertain as to why Jackson was reaching into the center console,
and after multiple attempts to ask him out of the car went unheeded, the facts give rise to
an inference that Jackson posed a reasonable threat. Unable to see what Jackson was
doing, Trooper Kane could have reasonably suspected that Jackson was reaching for a
weapon. This, along with the low level of intrusion—Jackson was not slammed to the
ground or otherwise injured—supports a conclusion that Trooper Kane's actions were
reasonable under the circumstances.
573 F. App’x 401, 405 (6th Cir. 2014). In Slusher v. Carson, the Sixth Circuit found that an
officer did not act unreasonably when he pulled down a plaintiff’s arm and grabbed her hand
because she was arguing with an officer and refusing to return a court order that the officer had
shown her that entitled him to search her property and claim two tractors therein. 540 F.3d 449,
455-56 (6th Cir. 2008). As the Sixth Circuit said in Slusher, “[i]n determining whether force was
excessive, we often must assess the actions of the plaintiff.” Id. at 456. Here, there is absolutely
no evidence that Billups failed to comply promptly with any of Carson’s orders, made any
suspicious movements, or behaved in any manner that would necessitate force in removing her
from the car.
Construed in Plaintiff’s favor, the record indicates that Officer Carter violated Billups’
constitutional right to be free from excessive force when he roughly pulled her from the car with
his gun pointed at her when she was not resisting.
b. Clearly Established
Having found a violation of Billups’ constitutional right to be free from excessive force,
the Court must now decide whether this right was clearly established at the time of the incident.
In Eldridge v. City of Warren, the Sixth Circuit held that “the right of a suspect to be free from
the use of physical force when he is not resisting police efforts to apprehend him” is clearly
23

established. 533 F. App’x 529, 535 (6th Cir. 2013). Acknowledging that the Supreme Court has
held that in the qualified-immunity context, rights should not be defined “at a high level of
generality,” id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), the Eldridge court relied
on a previous Sixth Circuit case, Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509
(6th Cir. 2012), that held that it was excessive to use gratuitous force on “suspects [who] were
compliant or had stopped resisting,” Eldridge, 533 F. App’x at 535 (quoting Hagans, 695 F.3d at
509), concluding that such a right was “sufficiently narrow[ed] . . . to achieve an adequate level
of particularity,” id. The Eldridge court held that this right was clearly established at the time of
the incident in question in that case, which took place in 2009, well before the 2011 stop of
Billups and her passengers. See id.
The Sixth Circuit has also held in numerous other cases that various kinds of force
against a detainee were unreasonable because the detainee was fully compliant with officer
instructions. See, e.g., Burgess v. Fischer, 735 F.3d 462, 474-75 (6th Cir. 2013) (use of force
against a suspect was unreasonable when plaintiff was already handcuffed and compliant with
orders); Grawey v. Drury, 567 F.3d 302, 310-11 (6th Cir. 2009) (finding that the use of pepper
spray on an individual who had his hands up and was not resisting was unreasonable); Phelps v.
Coy, 286 F.3d 295, 301 (6th Cir. 2002) (“There is no governmental interest in continuing to beat
[the plaintiff] after he had been neutralized, nor could a reasonable officer have thought there
was.”); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988) (“Everyone agrees that [the
plaintiff] was handcuffed and that he was not trying to escape or to hurt anyone. The ‘need for
the application of force’ was thus nonexistent.”). Indeed, “[t]he general consensus among [Sixth
Circuit] cases is that officers cannot use force . . . on a detainee who has been subdued, is not
told he is under arrest, or is not resisting arrest.” Grawey, 567 F.3d at 314. And at an even

24

greater level of particularity to the facts here, where Billups had her hands on the steering wheel,
the Sixth Circuit has also noted that “an individual poses little threat of harm when her hands are
in the air indicating submission.” Kent, 810 F.3d at 391 (citing Grawey, 567 F.3d at 311).10
The Court finds that construing the record in Billups’ favor as required on summary
judgment, Officer Carter violated Billups’ clearly established constitutional right to be free from
excessive force. Because Billups was not a threat when Defendant Carter applied force, “[t]he
need for the application of force was thus nonexistent.” McDowell, 863 F.2d at 1307 (internal
quotation marks omitted). Defendant’s Motion for Summary Judgment on Plaintiff’s excessiveforce claim is DENIED.
C. Official-Capacity Claim
Billups purports to bring claims against Officer Carter in both his individual and official
capacities. Because official-capacity suits are “treated as a suit against the entity,” Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)), the
Court will construe this claim as a claim against the City of Columbus. Dismissal of this claim is
warranted because Billups has failed to allege in her pleading that the constitutional violations
were caused by a city “policy or custom.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). Absent such a policy or custom, “a local government may not be sued under § 1983 for
an injury inflicted solely by its employees or agents.” Id. The Court GRANTS summary
judgment to Defendant on this claim.

10

Although Kent was issued well after the 2011 stop of Billups, the Sixth Circuit in Kent cited
Grawey, a 2009 case, for the proposition that it was a clearly established constitutional violation
to use force on a plaintiff after he had stopped running and was “wait[ing] for police with his
hands against a wall.” See Grawey, 567 F.3d at 314.
25

IV.

CONCLUSION

For the foregoing reasons, the Courts find that there is a disputed issue of material fact
regarding whether the statute of limitations for Plaintiff’s claims should be equitably tolled. The
Court GRANTS Defendant’s Motion for Summary Judgment on Plaintiff’s Fourth Amendment
claim for unreasonable seizure; DENIES the Motion for Summary Judgment on Plaintiff’s
Fourth Amendment claim for excessive force on the ground that Carter is not entitled to qualified
immunity; and GRANTS Defendant’s Motion for Summary Judgment on Plaintiff’s officialcapacity claim, her Fourth Amendment claim for unlawful seizure, and her Fifth, Eighth, and
Fourteenth Amendment claims. (Doc. 46.)
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: July 22, 2016

26