Beyoglides v. Montgomery County Sheriff Department et al

Filing 156

DECISION AND ENTRY: (1) GRANTING PLAINTIFFS MOTION TO VOLUNTARILY DISMISS ALL CLAIMS AGAINST DEFENDANT KRUSE; (2) GRANTING SHERIFF PLUMMERS MOTION FOR SUMMARY JUDGMENT (DOC. 114) WITH REGARD TO STATE LAW CLAIMS ASSERTED AGAINST HIM IN HIS OFFICIAL C APACITY, BUT OTHERWISE DENYING THE COUNTY DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOC. 114); (3) DENYING THE NAPHCARE DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOC. 112) AS MOOT; AND (4) DENYING THE COUNTY DEFENDANTS MOTION TO STRIKE (DOC. 150) ON THE MERITS IN PART AND OTHERWISE DENYING SUCH MOTION AS MOOT. Signed by Magistrate Judge Michael J. Newman on 2/6/17. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID M. HOPPER, Special Administrator
of the Estate of Robert Andrew
Richardson, Sr., Deceased,

Case No. 3:14-cv-158

Plaintiff,
vs.
MONTGOMERY COUNTY SHERIFF, et al.,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendants.
______________________________________________________________________________
DECISION AND ENTRY: (1) GRANTING PLAINTIFF’S MOTION TO
VOLUNTARILY DISMISS ALL CLAIMS AGAINST DEFENDANT KRUSE; (2)
GRANTING SHERIFF PLUMMER’S MOTION FOR SUMMARY JUDGMENT (DOC.
114) WITH REGARD TO STATE LAW CLAIMS ASSERTED AGAINST HIM IN HIS
OFFICIAL CAPACITY, BUT OTHERWISE DENYING THE COUNTY DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (DOC. 114); (3) DENYING THE NAPHCARE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. 112) AS MOOT; AND
(4) DENYING THE COUNTY DEFENDANTS’ MOTION TO STRIKE (DOC. 150) ON
THE MERITS IN PART AND OTHERWISE DENYING SUCH MOTION AS MOOT1
______________________________________________________________________________
This 42 U.S.C. § 1983 case, for which the parties have consented, is before the Court on
the motions for summary judgment filed by: (1) Defendants Sheriff Phil Plummer, Sergeants Ted
Jackson and Brian Lewis, Corrections Officers Dustin Johnson, Mathew Henning, Michael
Beach, Keith Mayes, Bradley Marshall, Michael Stumpff, and Sheriff Deputy Andrew Wittman
(collectively referred to as the “County Defendants”); and (2) Defendants NaphCare, Inc.,
Nurses Kristy Kruse,2 Krisandra Miles, Medic Steven Stockhauser, and Brenda Garrett Ellis,
M.D. Docs. 112, 114. Plaintiff filed memoranda opposing these motions. Docs. 123, 124.

1

Insofar as Defendants seek to strike witness statements from certain Montgomery County Jail
inmates, the Court DENIES such motion (doc. 150) as moot because the Court did not rely on any of
these statements in issuing this Decision and Entry.
2
Plaintiff seeks to voluntarily dismiss all claims against Defendant Kruse. See doc. 124 at
PageID 3696. The Court hereby GRANTS Plaintiff’s request to voluntarily dismiss claims against
Defendant Kruse and hereby DISMISSES Kruse as a party to this suit pursuant to Fed. R. Civ. P. 21.

Thereafter, Defendants filed reply memoranda. Docs. 148, 149. Following the briefing of these
motions, Plaintiff and the Naphcare Defendants settled their dispute, leaving only the County
Defendants before the Court.
The County Defendants also filed a motion to strike certain evidence relied upon by
Plaintiff to oppose summary judgment. Doc. 150. Plaintiff filed a memorandum in opposition to
the motion to strike. Doc. 154. Thereafter, the County Defendants filed a reply memorandum.
Doc. 155.
The Court has carefully considered all of the foregoing, including the evidence cited in
support thereof. Accordingly, the County Defendants’ motions are ripe for review and decision.
I.
A motion for summary judgment should be granted if the evidence submitted to the
Court demonstrates that there is no genuine issue as to any material fact and that the movant is
entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “Summary judgment is only appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.’” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007)
(quoting Fed. R. Civ. P. 56(c)).

“Weighing of the evidence or making credibility

determinations are prohibited at summary judgment -- rather, all facts must be viewed in the
light most favorable to the non-moving party.” Id.
Once “a motion for summary judgment is properly made and supported, an opposing
party may not rely merely on allegations or denials in its own pleading[.]” Viergutz v. Lucent
Techs., Inc., 375 F. App’x 482, 485 (6th Cir. 2010) (citation omitted). Instead, the party
2

opposing summary judgment has a shifting burden and “must -- by affidavits or as otherwise
provided in this rule -- set out specific facts showing a genuine issue for trial.” Id. (citation
omitted). Failure “to properly address another party’s assertion of fact as required by Rule
56(c)” could result in the Court “consider[ing] the fact undisputed for purposes of the motion.”
Fed. R. Civ. P. 56(e)(2).
Finally, “there is no duty imposed upon the trial court to ‘search the entire record to
establish that it is bereft of a genuine issue of material fact.’” Buarino v. Brookfield Twp.
Trustees, 980 F.2d 399, 404 (6th Cir. 1992) (citations omitted). Instead, “[i]t is the attorneys, not
the judges, who have interviewed the witnesses and handled the physical exhibits; it is the
attorneys, not the judges, who have been present at the depositions; and it is the attorneys, not the
judges, who have a professional and financial stake in case outcome.” Id. at 406. In other
words, “the free-ranging search for supporting facts is a task for which attorneys in the case are
equipped and for which courts generally are not.” Id.
II.
As ordered by the undersigned, Defendants filed a statement of proposed undisputed facts
(docs. 112-1, 114-1), to which Plaintiff responded -- by admitting certain facts are undisputed or
otherwise citing portions of the record demonstrating the existence of a material dispute of facts
(docs. 123-9, 124-5). The parties support these statements by citing to evidence filed with the
Court -- including approximately thirty depositions of the individual Defendants and other
witnesses. See docs. 77-99, 102-08, 110. The Court incorporates these statements of facts
herein, including those disputed facts viewed in a light most favorable to Plaintiff. See supra.
This case concerns the death of Robert Richardson at the Montgomery County, Ohio Jail
(“Jail”) on May 19, 2012. The Montgomery County Sheriff’s Office (“MCSO”) is in charge of
operating and managing the Jail. Doc. 124-5 at PageID 3795-96. On May 19, 2012, the MCSO
3

employed Defendants Jackson, Lewis, Henning, Beach, Mayes, Marshall, Stumpff, and Wittman.
Id. Defendant NaphCare, Inc. (“NaphCare”) is a correctional healthcare provider that provides
medical services at the Jail pursuant to a contract with the MCSO.

Id. at PageID 3795.

Defendants Felicia Foster, R.N.; Krisandra Miles, LPN; and Steven Stockhauser, EMT were
employees of NaphCare on May 19, 2012. Id. Brenda Garrett Ellis, M.D. was a contractor of
NaphCare. Id.
On May 17, 2012, Richardson was arrested on a capias issued from the Montgomery
County, Ohio Juvenile Court as a result of his failure to appear for child support enforcement
proceedings. Doc. 123-4 at PageID 3638; doc. 123-9 at PageID 3671. Richardson was found
and arrested, then booked into the Jail on May 17, 2012. Id. Later that same day, without having
appeared before any court, Montgomery County Juvenile Judge Anthony Capizzi entered an
order imposing upon Richardson a 30-day jail sentence, from which Richardson could be
released upon the payment of $2,500.00 to Montgomery County Child Support Enforcement
Agency (“SEA”). See doc. 123-6 at PageID 3630. Although no other Juvenile Court records or
transcripts are before the Court on summary judgment, the undersigned presumes -- construing
all reasonable inferences in Plaintiff’s favor -- that Judge Capizzi issued this sanction upon
finding Richardson in contempt for failing to appear and/or for failing to pay child support
obligations. See docs. 123-4, 123-6.
Upon arriving at the Jail, Richardson underwent a medical screening. Doc. 124-5 at
PageID 3796. Records from such screening show that Richardson was six feet tall, weighed 280
pounds, had high blood pressure, and was not taking any medications.

Id.

At the Jail,

Richardson shared a cell with Marcus Maxwell. See doc. 123-9 at PageID 3671. On May 19,
2012, upon returning to his cell after visiting with his fiancé, Richardson began suffering from an
apparent medical issue. Id.; see also doc. 78 at PageID 843-44. According to responding
4

corrections officers, Richardson appeared to be having a seizure and was making seizure type
movements, such as thrashing his body around. See doc. 78 at PageID 845.3
Defendant Ted Jackson, a Sergeant with the MCSO, was the first to arrive at
Richardson’s cell, along with Defendant Justin Johnson, a MCSO corrections officer. Doc. 83 at
PageID 1109.

When Jackson and Johnson arrived, Richardson was sitting on the floor,

attempting to stand. Id. at PageID 1109. Richardson had blood and saliva coming from his
mouth. Id. at PageID 1111. He was disoriented (“he’s looking at you, but he isn’t”), had
accelerated breathing, was lethargic, and was unable to comprehend officers’ verbal commands.
Id. at PageID 1109-11. Throughout the entire incident, MCSO corrections officers consistently
testified that Richardson neither hurt anyone nor attempted to hurt anyone in his disoriented
state. Doc. 83 at PageID 1118. Because Richardson appeared unbalanced and uncoordinated,
MCSO officers did not want him standing and decided to remove him from the cell where there
were sharp metal objects -- such as the bed, toilet, and a bench -- in a very confined space. Id.
Initial Response and Handcuffing of Richardson
MCSO officers successfully removed Richardson from his cell without issue. Id. at
PageID 1113. Once removed, Richardson was in a face down position on the concrete floor
outside the cell on the second floor walkway. Id. Once removed from the cell and lying face
down on the ground on the upper level walkway of the cell block, Richardson kept “drawing his
arms into -- under his body . . . in a natural position to lift himself up, because he’s still trying to
stand up at this point.” Id. at 1114. Because a disoriented Richardson was attempting to stand
up and posed a risk to his own safety -- as well as the safety of others on the second floor
walkway -- Jackson made the decision to handcuff Richardson in an effort “[t]o gain more
control over him[.]” Id.
Richardson’s autopsy revealed cannabis in his system as a result of his apparent use of
marijuana within hours of his death. Doc. 99 at PageID 2408-09; doc. 102 at PageID 2527-32.
5
3

Officer Michael Stumpff, Sergeant Brian Lewis, and Officer Matthew Henning all
arrived on the scene after Jackson and Johnson, and assisted in cuffing Richardson by holding his
arms. Doc. 85 at PageID 1230-31; doc. 89 at PageID 1381. Officer Marshall and Defendant
Stockhauser -- a NaphCare medic -- were also on the scene while officers were handcuffing
Richardson. Doc. 87 at PageID 1309; doc. 108 at PageID 3266, 3274-76. Although all County
Defendants state otherwise, Medic Stockhauser testified that, as MCSO Defendants were
handcuffing Richardson, he and one of the NaphCare nurses “told corrections [officers],” namely
Lewis, “to cuff [Richardson] in the front so [medical staff] could better assess [him].” Doc. 108
at PageID 3266, 3274-76. Medic Stockhauser’s medical recommendation was not followed by
corrections officers.4 Id.
Restraint of Richardson Following Handcuffing
Richardson was cuffed in under one minute and, thereafter, officers remained on the
scene to restrain Richardson to the floor.

Doc. 83 at PageID 1117.

Marshall restrained

Richardson’s right shoulder, applying pressure when needed to control Richardson from moving.
Id. at PageID 1309-10.

Marshall admitted that, at times, he placed one to two hands on

Richardson’s back to control his movements. Id. Stumpff was positioned at Richardson’s left
shoulder near his head -- where he saw blood and mucus coming from Richardson’s mouth and
nose -- and restrained Richardson from lifting his shoulder. Doc. 89 at PageID 1385. Johnson
assisted by straddling Richardson’s lower body at his thigh/hip area. Doc. 84 at PageID 116364. Officer Henning assisted in kneeling over Richardson’s legs. Doc. 82 at PageID 1085.

The County Defendants argue that “it is undisputed that none of the [County Defendants] heard
any medical personnel give instructions on how Mr. Richardson should be positioned during the course of
the incident.” Doc. 148 at PageID 3957. The Court disagrees that such fact is undisputed. See doc. 1239 at PageID 3680. Plaintiff admits only that the County Defendants testified that they did not hear any
instructions from medical personnel, but Stockhauser’s testimony -- that Lewis specifically overrode his
medical instruction -- creates an issue of fact in this regard. Doc. 108 at PageID 3266, 3274-76.
6
4

After about seven minutes on the scene, Johnson’s shift ended and he was relieved of
duty by Officer Beach, who took over straddling Richardson legs. Doc. 84 at PageID 1169; doc.
77 at PageID 816-17. Officer Henning was relieved of duty and left the scene after nine minutes
and the record is unclear as to whether Henning -- a trainee who was completing his first day on
the job -- was specifically replaced on the scene. Doc. 82 at PageID 1087. Fifteen minutes into
the incident, Officer Mayes entered the scene for Medic Stockhauser and took over restraining
Richardson’s head -- he placed one hand under Richardson’s head and his other hand on top of
Richardson’s head to prevent him from putting his head up. Doc. 88 at PageID 1351. Officer
Wittman came onto the scene approximately sixteen minutes into the incident and relieved an
officer near Richardson’s left arm -- presumably Stumpff. Doc. 90 at PageID 1426.
Medical Response
With regard to medical care, once Richardson was handcuffed and the scene was safe,
Medic Stockhauser -- noting at that time Richardson’s disorientation and that he was suffering a
likely seizure -- began wiping bloody sputum from Richardson’s face and trying give him
oxygen. See doc. 108 at PageID 3281-82 (stating that “oxygen is the first . . . thing to use on
somebody that just had a seizure”). Medic Stockhauser also placed a towel under Richardson’s
head to prevent it from striking the concrete. Doc. 105 at PageID 2938. Nurse Miles, who
arrived on the scene around the same time as Medic Stockhauser, was trying to talk to
Richardson and assess him. Doc. 105 at PageID 2930-32. Otherwise, Nurse Miles stood and
watched Medic Stockhauser. Id. at PageID 2934.
Nurse Foster arrived on the scene after Richardson had been handcuffed and left after a
couple of minutes to speak with Dr. Ellis. Doc. 107 at PageID 3162-63. Dr. Ellis, after being
advised by Nurse Foster, ordered that Richardson be given Ativan. Doc. 105 at PageID 2875,
2959; doc. 107 at PageID 3165. Nurse Miles delivered the Ativan syringe to Nurse Kruse, which
7

was not successfully injected and, instead, spilled onto the floor. Id. A second dose of Ativan
was then ordered, which Nurse Foster delivered to the scene and administered herself in
Richardson’s gluteal muscle. Doc. 107 at PageID 3165-66. Notably, no Ativan was detected in
Richardson’s blood on autopsy, however. See doc. 94 at PageID 172. Nurse Foster then left the
scene shortly after administering the second Ativan shot. Id. at PageID 3175.
Soon thereafter, all medical staff backed away from the scene so that Richardson could
presumably be placed into a restraint chair. Doc. 105 at PageID 2886. During Richardson’s
restraint, inmates at the jail state they heard him tell those on the scene that he could not breathe.
Doc. 92 at PageID 1587. Officer Stumpff himself testified that Richardson may have indicated
he could not breathe while being restrained. See doc. 89 at PageID 1375.
Richardson’s Death
After approximately twenty-two minutes of being restrained on the floor, MCSO officers
realized that Richardson had stopped breathing.
subsequently died.

Id. at PageID 1389.

Id. at PageID 1387-88.

Richardson

While the parties dispute the ultimate cause of

Richardson’s death, Plaintiff presents evidence that, when construed in his favor, shows that
Richardson died as a result of positional or restraint asphyxia while being restrained in a prone
position by multiple corrections officers at the Jail on May 19, 2012. Doc. 123-1 at PageID
3582; doc. 124-2 at PageID 3758-59.
Policies Regarding Prone Restraint
Plaintiff presents expert evidence from Michael Berg, a corrections expert, who states
that, within the field of corrections, it has long been understood that pinning individuals to the
ground in prone restraint for unreasonably long periods of time is dangerous and likely to cause
death. Doc. 123-8 at PageID 3636. Berg further testifies that corrections facilities must develop

8

clear policies governing the restraint of individuals in prone position and that it is necessary to
adequately train officers on such policies. Id.
On August 3, 2009, prior to Richardson’s death, then-Ohio Governor Ted Strickland
issued Executive Order 2009-13S, titled “Establishing Restraint Policies Including a Ban on
Prone Restraints,” wherein he ordered a number of state agencies, including the Ohio
Department of Rehabilitation and Corrections,5 to immediately adopt a policy on the use of,
among other uses of force, prone restraint.

Doc. 96-2 at PageID 2109.

Specifically, the

Executive Order -- consistent with the opinion of Berg -- states that “[a]ccepted research has
shown that there is a risk of sudden death when restraining an individual in a prone position,”
and further ordered implementation of the following policy:
PRONE RESTRAINT: The use of the prone restraint is prohibited across
all state systems. Prone restraint is defined as all items or measures used
to limit or control the movement or normal functioning of any portion, or
all, of an individual’s body while the individual is in a face-down position
for an extended period of time. Prone restraint includes physical or
mechanical restraints.
Id. at PageID 2110. The policy advanced in the Executive Order permitted, under certain
conditions, a “brief physical positioning of an individual face down for the purpose of quickly
and effectively gaining physical control of that individual in order to prevent harm to self and
others, or prior to transport to enable the individual to be transported safely.” Id. at 2110-11
(emphasis added).
Similar to the prohibition advanced by former Governor Strickland in Executive Order
2009-13S, the Montgomery County Jail’s official policies prohibit “placing prisoners who are in
restraints in prone . . . position[][.]” Doc. 96-4 at PageID 2131. Despite existence of this policy,

Under Ohio law, “[t]he sheriff shall have charge of the county jail and all persons confined
therein” and “shall keep such persons safely, attend to the jail, and govern and regulate the jail according
to the minimum standards for jails in Ohio promulgated by the department of rehabilitation and
correction.” Ohio Rev. Code § 341.01.
9
5

however, County Defendants testified that there was “nothing in our training that says we cannot
have somebody in a prone position and handcuffed.” Doc. 85 at PageID 1238; doc. 90 at PageID
1420 (wherein Defendant Stumpff testified that “I’ve been through many trainings, and I’ve
never been told not to do that”). In fact, some County Defendants testified that they are trained
to do the opposite, i.e., place people in a prone position with hands cuffed behind their back.
Doc. 88 at PageID 1339.
III.
The County Defendants move for summary judgment on all of Plaintiff’s claims. Doc.
114. Specifically, Plaintiff has asserted the following constitutional claims under 42 U.S.C.
§ 1983: (A) an excessive use of force claim against the individual County Defendants; (B) a
deliberate indifference to medical needs claim against all of the individual Defendants; and (C) a
claim for municipal liability under Monell for failure to supervise, train, discipline, or conduct an
adequate investigation. Doc. 73. Plaintiff also asserts a state law wrongful death claim against
the County Defendants premised on an alleged claim of assault and battery. Id. The Court will
address the arguments on each of these claims in turn.
A.

Excessive Force

The Court first addresses Plaintiff’s § 1983 claim asserting excessive force, which
Plaintiff alleges arises from the forcible restraint of Richardson in a prone position for a
prolonged period of time while he was suffering from a medical episode, ultimately leading to
his death by restraint asphyxia. Doc. 123 at PageID 354. The County Defendants argue that
they are entitled to qualified immunity on this claim. Doc. 114 at PageID 3437-43.
“Government officials, including police officers, are immune from civil liability unless,
in the course of performing their discretionary functions, they violate the plaintiff’s clearly
established constitutional rights.” Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010). Simply
10

put, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citing Malley v. Briggs, 475
U.S. 335, 341 (1986)). With regard to the individual County Defendants, they are entitled to
qualified immunity unless “the evidence produced, when viewed in the light most favorable to
the plaintiff, would permit a reasonable juror to find that (1) the defendant violated a
constitutional right; and (2) the right was clearly established.” Aldini, 609 F.3d at 863; Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
1.

Applicable Constitutional Amendment

“In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged application of
force.” Graham v. Connor, 490 U.S. 386, 394 (1989). “In most instances, that will be either the
Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth
Amendment’s ban on cruel and unusual punishments, which are the two primary sources of
constitutional protection against physically abusive governmental conduct.” Id.
“The Fourth Amendment’s prohibition against unreasonable seizures of the person
applies to excessive-force claims that ‘arise[ ] in the context of an arrest or investigatory stop of
a free citizen,’ while the Eighth Amendment’s ban on cruel and unusual punishment applies to
excessive-force claims brought by convicted criminals serving their sentences.” Aldini, 609 F.3d
at 864 (citations omitted). “When neither the Fourth nor the Eighth Amendment serves to protect
citizens, courts have applied the Fourteenth Amendment.” Id. (citing Lanman v. Hinson, 529
F.3d 673, 680-81 (6th Cir. 2008)). “[W]hich amendment applies depends on the status of the
plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in
between.” Id. at 865 (citing Gravely v. Madden, 142 F.3d 345, 348-49 (6th Cir. 1998)).

11

Here, Richardson was arrested on a capias issued by the Montgomery County Juvenile
Court because of his failure to appear at child-support related hearings. See doc. 123-4 at
PageID 3627-28. As noted, later on the same day of his arrest -- without having ever appeared
before a judge following his arrest, the Juvenile Court -- presumably having found Richardson in
contempt for his failure to appear, failure to pay child support obligations, or both -- issued an
entry imposing a 30-day sentence on Richardson, but also stating that he could be released from
jail upon the payment of $2,500.00 to the SEA. Doc. 123-6 at PageID 3630.
From the Court’s perspective, to identify the Amendment applicable to Plaintiff’s
excessive force claim, the critical determination is whether the sentence or sanction imposed
upon Richardson by the Juvenile Court was criminal or civil. If the contempt sanction is civil,
“the Eighth Amendment is inapplicable to such a sentence[.]” United States v. Dien, 598 F.2d
743, 745 (2d Cir. 1979) (citing Uphaus v. Wyman, 360 U.S. 72, 81 (1959); Ingraham v. Wright,
430 U.S. 651, 667-68 (1977)); see also Spallone v. United States, 487 U.S. 1251, 1257 (1988)
(stating that “it appears settled that the Cruel and Unusual Punishments Clause does not apply to
civil contempt sanctions”); Wronke v. Champaign Cty. Sheriff’s Office, 132 F. App’x 58, 61 (7th
Cir. 2005) (noting that “Eighth Amendment does not apply to a civil contempt sentence”). 6 On
the other hand, if the sanction imposed was for criminal contempt, the Eighth Amendment
applies to Plaintiff’s excessive force claim. See United States v. United Mine Workers of Am.,
330 U.S. 258, 365 n.30 (1947) (noting that “the protection against cruel and unusual punishments
in the Eighth Amendment applies to criminal contempt”).

6

Based upon this Supreme Court authority, the Court finds unpersuasive the reasoning in Lewis
v. Stellingworth, No. 07-CV-13825, 2009 WL 1384149, at *6 (E.D. Mich. May 14, 2009), in which that
court -- citing Michigan state law -- concluded “[t]he distinction between civil contempt and criminal
contempt in the context of deciding the appropriate constitutional standard to be applied to Lewis'
excessive force claim is inconsequential.”
12

“[T]he characterization of [a] proceeding and the relief given as civil or criminal in
nature, for purposes of determining the proper applicability of federal constitutional protections,
raises a question of federal law rather than state law.” Hicks on Behalf of Feiock v. Feiock, 485
U.S. 624, 630 (1988). Under federal law,7 if the sanction or relief imposed “is for civil contempt
the punishment is remedial, and for the benefit of the complainant.” Id. at 631. If, however, the
sanction or relief imposed “is for criminal contempt the sentence is punitive, to vindicate the
authority of the court.” Id. at 630-31 (citation omitted). Courts can ascertain “[t]he character of
the relief imposed . . . by applying a few straightforward rules.” Id. at 631. Namely, “the relief
provided is a sentence of imprisonment, it is remedial if ‘the defendant stands committed unless
and until he performs the affirmative act required by the court’s order[.]” Id. However, the
sanction “is punitive if ‘the sentence is limited to imprisonment for a definite period.’” Id.
Here, the sanction imposed by the Juvenile Court was a 30-day sentence in jail unless and
until Richardson paid $2,500 to SEA. See doc. 123-6 at PageID 3630. Accordingly, under the
circumstances, the Court concludes that Richardson was being held for civil contempt and, as a
result, the Eighth Amendment Cruel and Unusual Clause cannot and does not apply. See
Spallone, 487 U.S. at 1257. Instead, because Richardson was neither a convicted prisoner nor a
free citizen, the undersigned concludes that he falls within the “gray area” where “the Fourteenth
Amendment’s more generally applicable Due Process Clause governs to bar a governmental
official’s excessive use of force.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013); see

Similarly, under Ohio law, “it is usually said that offenses against the dignity or process of the
court are criminal contempts, whereas violations which are on their surface offenses against the party for
whose benefit the order was made are civil contempts.” State v. Kilbane, 400 N.E.2d 386, 390 (Ohio
1980). Further, as a general principle, “civil contempt is characterized by conditional sanctions, i.e., the
contemnor is imprisoned until he obeys the court order[,]” whereas “[c]riminal contempt . . . is usually
characterized by an unconditional prison sentence or fine.” Denovchek v. Bd. of Trumbull Cty. Comm’rs,
520 N.E.2d 1362, 1364 (Ohio 1988).
13
7

also Walters v. Cty. of Charleston, No. CA 2:01-0059-18, 2002 WL 34703346, at *3 (D.S.C.
Feb. 7, 2002).8
2.

Fourteenth Amendment Excessive Force Violation

Under the Fourteenth Amendment, Plaintiff’s burden is to “show . . . that the force
purposely or knowingly used against him was objectively unreasonable.” Morabito, 628 F.
App’x at 357 (citing Kingsley, 135 S.Ct. at 2473). In Kingsley, the Supreme Court held that an
excessive force analysis under the Fourteenth Amendment -- as opposed to under the Eighth
Amendment -- contains no subjective reasonableness inquiry. See Kingsley, 135 S. Ct. at 247273. Thus, the Court’s only inquiry under a Fourteenth Amendment excessive force analysis 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.” Clay, 797 F.3d at
370.
In determining objective reasonableness, courts consider a number of factors, such as
“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, 135 S. Ct. at 2466. Under this objective
inquiry, “[a]n officer’s evil intentions will not make a Fourth Amendment violation” just as

8

Because the Court finds that the Eighth Amendment does not apply to this case in the absence
of a criminal punishment, what the Court is left with is a claim arising either under the Fourth or
Fourteenth Amendment, and the analysis under both is the same. See Clay v. Emmi, 797 F.3d 364, 369
(6th Cir. 2015) (stating that, following the Supreme Court’s decision in Kingsley v. Hendrickson, 135
S.Ct 2466, 2473 (2015), an “excessive force claim brought under the Fourteenth Amendment's Due
Process Clause is subject to the same objective standard as an excessive force claim brought under the
Fourth Amendment”); see also Morabito v. Holmes, 628 F. App'x 353, 357 (6th Cir. 2015). Thus, the
same outcome would result regardless of whether the Court applies the Fourth Amendment or the
Fourteenth Amendment.
14

“officer’s good intentions [will not] make an objectively unreasonable use of force
constitutional.” Graham, 490 U.S. at 397.
The County Defendants argue that Plaintiff cannot show a genuine issue of material fact
concerning objective unreasonableness because no evidence shows that any of the County
Defendants applied compressive force to Richardson’s torso during the five minutes before his
death. Doc. 114 at PageID 3340. The County Defendants argue that, to survive summary
judgment, Plaintiff must show an issue of fact within these limited confines based upon the
testimony of Plaintiff’s expert Daniel Spitz, M.D., who the County Defendants contend testified
that: (1) restraint asphyxia occurs only when force is applied to the torso; and (2) the relevant
time period at issue is the last five minutes of the twenty-two minute event. Doc. 114 at PageID
3429, 3340.
The Court finds the County Defendants’ limited focus, concerning the time frame and the
type of compressive force applied, to be unfounded. First, Dr. Spitz’s testimony is equivocal on
whether compressive force to the torso itself is the only use of force that can lead to asphyxia of
restrained individuals held in a prone position. See doc. 99 at PageID 2414. Further, Dr. Spitz’s
testimony does not support the County Defendants’ contention that the five minutes before
Richardson’s death is the only relevant period of time in which the force applied should be
assessed. Id. Specifically, Dr. Spitz testified:
Q.

So really, when we’re talking about positional asphyxia, restraint
asphyxia, I guess the defining feature to that is going to be some sort of
pressure on the subject, correct?

A.

Correct. Some type of compressional force not allowing the chest to
expand fully.

Q.

And we’re talking about compressional force on the torso,[9] right?

It should be noted that Dr. Spitz defines “torso” to include the upper back and neck. See doc. 99
at PageID 2417; doc. 123-1 at PageID 3582, 3605.
15
9

A.

Correct.

Q.

Not the legs?

A.

Well, I would say that you’re correct but many times people use their arms
and their legs in order to help with respiratory movements. In other
words, if I have a compressive force on my back and I’m able to use my
arms to give myself some leverage to take pressure off of my chest, that’s
going to allow me to breathe more effectively even with pressure on my
back. If I’m able to bend my knees so that I can take pressure off my
torso, again, that’s going to allow me to facilitate respiratory movements
even with a compressive force on the back.
If you completely immobilize or limit movement of the legs and arms and
put pressure on the back, there’s no way to alleviate any of that pressure.
Over time, you’re going to basically tire. Respiratory movements will
ultimately stop. And if this is prolonged like it was in this case, the
outcome is going to be what we have here.

Q.

From your review of the literature and your experience, is there a time
period that you look at to define prolonged or does it depend on the
situation? I guess what do you mean by prolonged?

A.

Well, many cases where somebody is put in a prone position does not
result in a fatal outcome because it’s brief. In other words, even if you
completely limit someone’s ability to breathe and you do it over a period
of seconds, the outcome is not going to be bad in most situations. You
don’t even need to have full compressive force to cause death if it’s going
to be over a prolonged period of time. Certainly, 22 minutes is a
prolonged period of time. And as I indicated, most of that, there were
periods of prone restraint and then there were are periods of where the
body [wasn’t] entirely prone. There may be some slight recovery during
that period of time where the individual is not entirely prone. It’s the last
five, six minutes that are the most detrimental. But, obviously, Mr.
Richardson is already in a compromised state leading into those last five
minutes because he’s already been involved in an active restraint and
struggling and having extreme energy expenditure and stress on the
organs leading up to that last five minutes.

Id. (emphasis added). A reasonable juror could conclude, based upon Dr. Spitz’s testimony, that
compressive restraint of Richardson’s entire body -- including some force applied to his back and
legs -- in-and-out of a prone position over a twenty-two minute period, led to his death. Id.
Further, contrary to the County Defendants’ contention, evidence has been presented
showing compressive restraint of Richardson (including to his torso) for much of the twenty-two
16

minute period of time, including during the five minutes before Richardson’s death. Jurors
viewing the jail video of the incident could reasonably conclude that officers applied
compressive force upon a restrained Richardson’s back, shoulder blades, shoulders, neck, hands,
waist, thighs and lower legs throughout much of the twenty-two minute ordeal. See doc. 116
(i.e., the jail video filed manually with the Court at the request of all parties); see also Jennings v.
Fuller, No. 15-1870, 2016 WL 4727274, at *3 (6th Cir. Sept. 9, 2016) (stating “[a] jury looking
at the video could readily conclude” that significant pressure was applied to an inmate’s back).
In addition to the jail video, witnesses Jason Haag and Keith Wayne -- both inmates at
the Jail at the time of the incident -- testified that officers applied compressive force to
Richardson’s neck, head, shoulders and back as he continually told officers that he could not
breathe. See doc. 92 at PageID 1587, 1593, 1603-06; doc. 93 at PageID 1637. The County
Defendants urge the Court to exclude the testimony of these two witnesses as a matter of law
under Scott v. Harris, 550 U.S. 372 (2007), as inherently not credible based upon their limited or
completely obstructed view. In Scott, the Supreme Court held that, “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott 550 U.S. at 380. In that case, a video of the incident at
issue -- a high speed car chase -- told “quite a different story” than respondent’s testimony
offered in opposition to summary judgment. Id. at 379-80. Here, a reasonable jury could
conclude that the aforementioned Jail video actually corroborates much of the testimony offered
by Haag and Wayne concerning what they allegedly saw on May 19, 2012.10 Thus, the Court

10

The County Defendants provide no basis upon which the Court could exclude the testimony of
Haag and Wayne concerning what they heard during the incident.
17

declines to exclude the testimony of Haag and Wayne under Scott or otherwise assess the
credibility of such testimony for purposes of summary judgment.11
Further, the Court is cognizant that “[e]ach defendant’s liability must be assessed
individually based on his [or her] own actions.” Pollard v. City of Columbus, Oh., 780 F.3d 395,
402 (6th Cir. 2015), cert. denied, 136 S. Ct. 217 (2015) (citing Binay v. Bettendorf, 601 F.3d
640, 650 (6th Cir. 2010)). Specifically, with regard to excessive force claims, “a plaintiff must
prove that the officer (1) actively participated in the use of excessive force, (2) supervised the
officer who used excessive force, or (3) owed the victim a duty of protection against the use of
excessive force.” Id. (citation omitted).
In this instance, all of the County Defendants either actively participated in the use of
allegedly excessive force or supervised the other officers. The Court, as set forth above, declines
to limit its inquiry to the five minutes immediately preceding Richardson’s death and, instead,
considers the incident as a whole. Doc. 99 at 2414 (wherein Dr. Spitz testified “Richardson is
already in a compromised state leading into those last five minutes because he’s already been
involved in an active restraint and struggling and having extreme energy expenditure and stress
on the organs leading up to that last five minutes”).
As noted previously, evidence shows that Jackson, Lewis, Johnson, Stumpff and Beach
all participated in cuffing Richardson while in a prone position. See doc. 89 at 1381. Marshall
applied pressure to Richardson’s right shoulder while he was restrained to control Richardson’s
movement, and he admitted that, at times, he placed one to two hands on Richardson’s back.
Doc. 87 at PageID 1309-10. Stumpff restrained Richardson near his head at the left shoulder to
prevent him from lifting his shoulder. Doc. 89 at PageID 1385. Johnson straddled Richardson’s
11

The Court declines to find, based upon the jail video or still photos provided by Defendants,
that any of the jail inmates were wholly unable to view events from their vantage points in their cells.
Credibility on this basis should be determined by the fact-finder at trial based upon the evidence as a
whole.
18

lower body at his thigh/hip area. Doc. 84 at PageID 1163-64. For up to nine minutes, Henning
kneeled over Richardson’s legs. Doc. 82 at PageID 1085. Beach relieved Johnson after about
seven minutes and continued straddling Richardson legs. Doc. 84 at PageID 1169; doc. 77 at
PageID 816-17. Fifteen minutes into the incident, Mayes restrained Richardson’s head, doc. 88
at PageID 1351, and video evidence can reasonably be construed to show he placed significant
pressure on the back of Richardson’s head and neck. See doc. 116. Finally, Wittman came onto
the scene approximately sixteen minutes into the incident and restrained Richardson’s left arm.
Doc. 90 at PageID 1426.
In addition to the foregoing, both Jackson and Lewis were supervisors on the scene. A
supervising official can be individually liable under § 1983 where “the supervisor either
encouraged the specific incident of misconduct or in some other way directly participated in it.”
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016). Thus, “‘at a minimum,’ the
plaintiff must show that the defendant ‘at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers.’” Id. (citing Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Here, issues of fact remain concerning the individual supervisor liability of Jackson and
Lewis based upon -- at a minimum -- the fact that Jackson and Lewis participated in cuffing
Richardson; were on the scene while Richardson pleaded to officers that he could not breathe;
and were on the scene while subordinate officers restrained Richardson to the floor for what a
jury could conclude was an extended and unreasonable period of time. Doc. 83 at PageID 111217; doc. 83 at PageID 1231. In addition, a disputed issue of fact remains as to whether Lewis
(and potentially Jackson) refused Medic Stockhauser’s medical advice to cuff Richardson’s
hands in the front and to place him on his back so that he could be properly assessed. Doc. 108
at PageID 3266, 3274-76.
19

Based upon all of the foregoing, the undersigned finds no merit to Defendants’ arguments
in this regard and finds that genuine issues of material fact remain concerning the reasonableness
of the force used in this case.12
3.

Clearly Established Right

The next step in the qualified immunity analysis concerns whether the right allegedly
violated by the individual County Defendants was “clearly established” at the time of
Richardson’s death. See supra. A right is “clearly established” when “existing precedent . . .
placed the statutory or constitutional question beyond debate.” City & Cty. of San Francisco,
Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (citing al-Kidd, 563 U.S. at 741). The Supreme
Court has instructed courts to “not define clearly established law at a high level of generality[,]”
such as “that an unreasonable search or seizure violates the Fourth Amendment[.]” al-Kidd, 563
U.S. at 742. Instead, “[t]he dispositive question is ‘whether the violative nature of particular
conduct is clearly established’”; an inquiry that “must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (citations and internal quotations omitted).
In finding a right “clearly established,” the Court need not rely upon “a case on point,”
id., or even “a prior case [that is] ‘fundamentally’ or ‘materially’ similar to the present case[.]”
Baynes v. Cleland, 799 F.3d 600, 613 (6th Cir. 2015), cert. denied, 136 S. Ct. 1381 (2016).
Instead, such a right need only be defined “in a particularized context,” such as finding a Fourth
Amendment violation when state actors use “excessively forceful or unduly tight handcuffing.”

12

The undersigned would reach the same conclusion if utilizing a heightened standard for
analyzing the reasonableness of the force used under the Eighth Amendment. See McKinney v.
Lexington-Fayette Urban Cty. Gov’t, No. 5:12-CV-360-KKC, 2015 WL 4042157, at *8 (E.D. Ky. July 1,
2015), aff’d in part, rev’d in part sub nom. McKinney v. Lexington–Fayette Urban Cty. Gov’t, 651 F.
App’x 449 (6th Cir. 2016).
20

Baynes, 799 F.3d at 614. Such a “level of particularity in defining the constitutional right easily
meets the standards set out by the Supreme Court[.]” Id.
With regard to the constitutional violations alleged here, the Sixth Circuit, in 2004, held
that “[c]reating asphyxiating conditions by putting substantial or significant pressure, such as
body weight, on the back of an incapacitated and bound suspect constitutes objectively
unreasonable excessive force.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir.
2004). Further, it is “clearly established that putting substantial or significant pressure on a
suspect’s back while that suspect is in a face-down prone position after being subdued and/or
incapacitated constitutes excessive force.” Id. at 903. In fact, “[t]he prohibition against placing
weight on [a person’s] body after [that person is] handcuffed[,]” even if not in a prone position,
is “clearly established[.]” Martin v. City of Broadview Heights, 712 F.3d 951, 961 (6th Cir.
2013) (emphasis in original) (finding that such prohibition was clearly established at the time of
the August 2007 incident in that case).
Based upon the foregoing, the undersigned concludes that, at the time of the May 19,
2012 incident in this case, it was “clearly established” that forcibly restraining an individual in a
prone position for a prolonged period of time is unconstitutional.13 As a result, the undersigned
finds the County Defendants’ request for qualified immunity without merit.

13

The parties suggest that the Supreme Court in Kinsgley announced a new standard for
determining excessive force claims under the Fourteenth Amendment. See doc. 114 at PageID 3428; doc.
123 at PageID 3559. Some courts, however, find that “the central holding of Kingsley . . . had been the
law since Bell v. Wolfish, 441 U.S. 520 (1979).” Shuford v. Conway, No. 16-12128, 2016 WL 6820764,
at *4 (11th Cir. Nov. 18, 2016) (citing Kingsley, 135 S.Ct. at 2473-74) (noting that the objective standard
applicable to excessive force claims asserted by pretrial detainees under the Fourteenth Amendment “is
consistent with our precedent”). The Sixth Circuit notes that the standard applicable to excessive force
claims under the Fourteenth Amendment “was unclear” “[u]ntil very recently” when the Supreme Court
issued its decision in Kingsley. See Coley v. Lucas Cty., Oh., 799 F.3d 530, 538 (6th Cir. 2015)
Regardless of whether Kingsley affirmed previously existing Supreme Court precedent or clarified
unsettled law, the undersigned concludes that it does not impact the qualified immunity analysis set forth
herein. See Morabito, 628 F. App’x at 357-58 (finding a clearly established constitutional right despite
the intervening holding of Kingsley).
21

B.

Deliberate Indifference

“The Eighth Amendment’s prohibition on cruel and unusual punishment generally
provides the basis to assert a § 1983 claim of deliberate indifference to serious medical needs,
but where that claim is asserted on behalf of a pre-trial detainee, the Due Process Clause of the
Fourteenth Amendment is the proper starting point.” Phillips v. Roane Cnty., Tenn., 534 F.3d
531, 539 (6th Cir. 2008) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
As noted above, Richardson was not a convicted criminal inmate and, therefore, the Eighth
Amendment cannot govern the deliberate indifference claims alleged in this case. See supra.
The determination as to whether a state actor acted with deliberate indifference in
violation of either the Eighth or Fourteenth Amendment consists of an objective and subjective
inquiry. Smith v. Erie Cnty. Sheriff's Dep’t, 603 F. App’x 414, 419 (6th Cir. 2015) (citations
omitted).14 “The objective criterion requires a plaintiff to show a ‘sufficiently serious medical
need[,]’” whereas “[t]he subjective requirement demands a ‘showing of more than mere
negligence, but something less than specific intent to harm or knowledge that harm will result is
required.’” Smith, 603 F. App’x at 419.
Here, because facts of record -- when viewed in a light most favorable to Plaintiff -sufficiently create a dispute of fact as to whether Richardson laid restrained in a predominately
prone position for a substantial length of time, i.e., twenty-two minutes, reasonable minds could
Following the Supreme Court’s recent holding in Kingsley, supra, “it is unclear whether courts
should continue to use the Eighth Amendment’s deliberate-indifference standard to analyze inadequatemedical-care claims brought by pretrial detainees pursuant to the Due Process Clause.” Wilber, 2016 WL
892800, at *6. The Sixth Circuit -- while noting Kingsley in the context of assessing an excessive force
claim under the Fourteenth Amendment -- has continued to “require[ ] plaintiff to establish a subjective
component” to demonstrate a deliberate indifference claim under the Fourteenth Amendment, albeit,
without specifically considering the applicability of Kingsley to a deliberate indifference claim. See
Morabito, 628 F. App’x at 358. Absent argument to the contrary by Plaintiff, see doc. 124 at PageID
3719 (arguing applicability of a subjective inquiry to the deliberate indifference claim in this case), and
relying on Morabito, supra, the undersigned declines to find that Kingsley altered the deliberate
indifference test under the Fourteenth Amendment.
22
14

conclude that Richardson was suffering from an obvious serious medical need. Cf. Jones v. City
of Cincinnati, 507 F. App’x 463, 469 (6th Cir. 2012); May v. Twp. of Bloomfield, No. 11-14453,
2013 WL 2319323, at *14 (E.D. Mich. May 28, 2013) (finding the existence of an obvious
serious medical need where decedent, “after physically exerting himself in a struggle with . . .
[o]fficers” “was face down on the ground, with his arms handcuffed behind his back, for
approximately three minutes”).
Further, genuine issues of material fact remain concerning the subjective component of
the deliberate indifference claim.

Evidence, viewed in a light most favorable to Plaintiff,

demonstrates that Richardson continually told those on the scene that he could not breathe. Doc.
92 at PageID 1587. Officer Stumpff agrees that Richardson may have indicated to those on the
scene his inability to breathe. Doc. 89 at PageID 1375. Officer Wittman testified that there was
cause to be concerned about Richardson’s ability to breathe. Doc. 90 at PageID 1424. Despite
this cause for concern, the individual County Defendants each participated -- or supervised -- in
Richardson’s restraint for up to twenty-two minutes. See supra; see also Lanman, 529 F.3d at
685-89. These disputed facts preclude summary judgment with regard to the individual County
Defendants. Lanman, 529 F.3d at 685-89. Further, Richardson’s right to be free from such
conduct was clearly established as of May 19, 2012. See supra; see also Lanman, 529 F.3d at
685-89.
C.

Monell Liability; Failure to Train, Supervise and Investigate

Section 1983 imposes liability on any “person who, under color of any statute, ordinance,
regulation, custom or usage, of any State” subjects another to “the deprivation of any rights,
privileges, or immunities secured by the Constitution or laws.” 42 U.S.C. § 1983. Local
governments -- such as municipalities, counties or townships -- are considered persons under
§ 1983, and “may be sued for constitutional deprivations.” Monell v. Dep’t of Soc. Servs., 436
23

U.S. 658, 690-91 (1978). However, such entities cannot be held liable for the acts of its officials
on a respondeat superior theory. Id. at 693. Instead, an official policy or custom must be the
“moving force” behind the alleged constitutional deprivation. See City of Canton v. Harris, 489
U.S. 378, 389 (1989). To demonstrate Monell liability, one must: (1) identify the policy or
custom; (2) connect the policy to the governmental entity; and (3) show a particular injury of a
constitutional magnitude incurred because of that policy’s execution. Alkire v. Irving, 330 F.3d
802, 815 (6th Cir. 2003) (internal citations omitted).
A governmental entity’s “failure to [adequately] train and supervise” employees “about
their legal duty to avoid violating citizens’ rights may rise to the level of an official government
policy for purposes of § 1983[.]’” Shadrick v. Hopkins Cty., Ky., 805 F.3d 724, 737 (6th Cir.
2015) (citations omitted); see also Gregory v. City of Louisville, 444 F.3d 725, 753 (6th Cir.
2006) (stating that “courts recognize a systematic failure to train police officers adequately as
custom or policy which can lead to city liability” under § 1983).
To prevail on these claims against a government entity under §1983, Plaintiff must show
training and supervision provided: (1) “is inadequate to the tasks that the officers must perform;
(2) that the inadequacy is the result of the [County’s] deliberate indifference; and (3) that the
inadequacy is closely related to or actually caused the plaintiff’s injury.” Brown v. Chapman,
814 F.3d 447, 463 (6th Cir. 2016); see also Shadrick, 805 F.3d at 737 (stating that a plaintiff’s
“burden under § 1983 is to prove that [the entity’s] failure to train and supervise its [employees] .
. . amounted ‘to deliberate indifference to the rights of persons with whom the [employees] come
into contact”); Glowka v. Bemis, No. 3:12-CV-345, 2015 WL 8647702, at *5 (S.D. Ohio Dec.
14, 2015). “[E]vidence of a policy of deliberate indifferences” can also be found where a
Sheriff’s Office fails “to investigate [the] incident and punish the responsible parties.” Leach v.
Shelby Cty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989).
24

Here, with regard to training and supervision, Berg, a corrections expert, testifies that,
within the field of corrections, it has long been understood that pinning individuals to the ground
in prone restraint for unreasonably long periods of time is dangerous and likely to cause death.
Doc. 123-8 at PageID 3636. Berg further testifies that it is necessary to adequately train officers
on such policies. Id. The 2009 Ohio Executive Order discussed above prohibited all state
systems, including the ODRC -- who is responsible for setting minimum standards for Ohio jails
-- from “limit[ing] or control[ling] the movement or normal functioning of any portion, or all, of
an individual’s body while the individual is in a face-down position for an extended period of
time.” Doc. 96-2 at PageID 2110. Similarly, written policies of the Jail itself prohibit “placing
prisoners who are in restraints in prone . . . position[][.]” Doc. 96-4 at PageID 2131.
Despite the foregoing and the existence of an actual Jail policy, however, County
Defendants -- specifically supervising officer Sergeant Lewis -- testified that there was “nothing
in our training that says we cannot have somebody in a prone position and handcuffed.” Doc. 85
at PageID 1238; doc. 90 at PageID 1420 (wherein Defendant Stumpff testified that “I’ve been
through many trainings, and I’ve never been told not to do that”). In fact, evidence of record
suggests that officers are trained to do the opposite, i.e., place people in a prone position with
hands cuffed behind their back. Doc. 88 at PageID 1339. Such evidence creates a genuine issue
of material fact precluding summary judgment on behalf of the Sheriff in his official capacity.
See Martin v. City of Broadview Heights, No. 1:08 CV 2165, 2011 WL 3648103, at *9-10 (N.D.
Ohio Aug. 18, 2011), amended, No. 1:08 CV 2165, 2011 WL 5361062 (N.D. Ohio Oct. 31,
2011), and aff’d, 712 F.3d 951 (6th Cir. 2013) (finding an issue of act concerning “deliberate
indifference” in a positional asphyxia case where “the City knew, as evidenced by the
promulgation of its Policies, that its police officers would use force to restrain and arrest citizens,

25

yet failed to follow accepted professional standards in training its officers of how to properly
apply such force”).15
Further, evidence of record -- demonstrating that subsequent investigation into the
incident involved no interview of any of the officers involved (doc. 79 at PageID 887), no review
of the Jail’s policies (doc. 81 at PageID 1053), no use of force investigation (doc. 81 at PageID
1040), and that Sheriff Plummer approved a finding that the Defendant officers provided basic
medical care to Richardson (doc. 79-1 at PageID 912) -- create an issue of material fact as to
whether an adequate and meaningful investigation was conducted. Baker v. Union Twp., Ohio,
No. 1:12-CV-112, 2013 WL 4502736, at *24 (S.D. Ohio Aug. 22, 2013), aff’d in part, appeal
dismissed in part sub nom. Baker v. Union Twp., 587 F. App’x 229 (6th Cir. 2014).
Based upon the foregoing, the Court finds Plaintiff has presented evidence creating a
genuine issue of material fact as to the County’s maintenance of a policy permitting the
unconstitutional use of prone restraint and its failure to train and supervise concerning the use of
such restraint and the high risk of asphyxia that may result from the use of such force. See
Martin, 2011 WL 3648103, at *9-10 (finding an issue of act concerning “deliberate indifference”
in a positional asphyxia case where “the City knew, as evidenced by the promulgation of its
Policies, that its police officers would use force to restrain and arrest citizens, yet failed to follow
accepted professional standards in training its officers of how to properly apply such force”).
D.

State Law Claims

Finally, the County Defendants move for summary judgment on Plaintiff’s state law
wrongful death claims premised on the County Defendants’ alleged assault and battery of
15

In their motion to strike (doc. 150), the County Defendants seek to strike the testimony of Berg
concerning the adequacy of officer training. Defendants argue that such opinion should be stricken
because it is improperly based solely “on the fact that the incident itself occurred.” Doc. 150 at PageID
4000-01. However, Berg’s opinion is based on more than just the occurrence of the incident itself, and is
also based upon the testimony of the County Defendants themselves. See doc. 98 at PageID 2325.
Accordingly, the County Defendants’ motion (doc. 150) in this regard is DENIED.
26

Richardson. See doc. 114 at PageID 3450-52. The County Defendants argue that, insofar as
Plaintiff asserts an assault and battery claim against Sheriff Plummer in his official capacity, the
Sheriff is immune under Ohio Rev. Code § 2744.02. Id. at PageID 3451-52. Plaintiff sets forth
no specific argument in opposition to the County’s motion in this regard (see doc. 123 at PageID
3573) and, therefore, the Court finds the County Defendants’ argument in this regard to be
unopposed and such claim abandoned. Brown v. VHS of Michigan, Inc., 545 F. App’x 368, 372
(6th Cir. 2013) (stating that “a plaintiff is deemed to have abandoned a claim when a plaintiff
fails to address it in response to a motion for summary judgment”).
Even assuming, arguendo, that such claim has not been abandoned, summary judgment
on the wrongful death claim as asserted against Sheriff Plummer in his official capacity is
proper. Under Ohio law, Ohio political subdivisions -- such as Montgomery County, Ohio and
the MCSO -- are entitled to immunity for torts, subject to limited exceptions not applicable here.
See Ohio Rev. Code § 2744.02(A)(1) (stating that, subject to specific exceptions not applicable
here, “a political subdivision is not liable in damages in a civil action for injury, death, or loss to
person or property allegedly caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a governmental[16] or proprietary
function”). Claims against Sheriff Plummer in his official capacity are, in essence, claims
against the political subdivision itself. See Petty v. Cty. of Franklin, Oh., 478 F.3d 341, 349 (6th
Cir. 2007). In light of the foregoing, and absent specific opposition by Plaintiff, the Court finds
Sheriff Plummer is entitled to immunity on Plaintiff’s state law claims under Ohio Rev. Code
§ 2744.02.
However, the individual County Defendants -- Jackson, Lewis, Johnson, Henning, Beach,
Mayes, Marshall, Stumpff, and Wittman -- are not entitled to immunity under Ohio Rev. Code
The operation of a jail “is a governmental function.” Stefan v. Olson, 497 F. App’x 568, 580
(6th Cir. 2012).
27
16

§ 2744.02. Instead, under Ohio law, employees of political subdivisions are entitled to immunity
under Ohio Rev. Code § 2744.03(A)(6) unless “[t]he employee’s acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless manner[.]” While “the threshold for
liability” under a recklessness standard “appears to be slightly higher under Ohio law” -- as
opposed to a federal “deliberate indifference standard” -- the Court concludes, based upon the
foregoing analysis of Plaintiff’s deliberate indifference claim, that a reasonable jury could find
recklessness

sufficient

to

overcome

employee

immunity

under

Ohio

Rev.

Code

§ 2744.03(A)(6)(b). Stefan v. Olson, 497 F. App’x 568, 581 (6th Cir. 2012). Therefore,
summary judgment on Plaintiff’s state law wrongful death claims asserted against the individual
County Defendants is not appropriate.
IV.
Based upon the foregoing, the Court ORDERS as follows:
(1)

Plaintiff’s motion to voluntarily dismiss all claims against Defendant
Kruse (doc. 124 at PageID 3696) is GRANTED and such claims are
hereby DISMISSED pursuant to Fed. R. Civ. P. 21 with prejudice;

(2)

The County Defendants’ motion for summary judgment (doc. 114) is
GRANTED with regard to state claims asserted against Sheriff Plummer
in his official capacity, but otherwise DENIED;

(3)

The NaphCare Defendants’ motion for summary judgment (doc. 112) is
DENIED AS MOOT; and

(4)

The County Defendants’ motion to strike (doc. 150) is DENIED on the
merits as to the testimony of Michael Berg, but otherwise DENIED AS
MOOT with regard to witness statements.

IT IS SO ORDERED.

Date:

February 6, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

28