Smith v. City of Troy Ohio et al

Filing 83

ENTRY AND ORDER GRANTING JOINT MOTION FOR SANCTIONS BY DEFENDANTS, DEPUTY PHILLIP OSTING AND OFFICER SCOTT GATES. ECF 68 : Wherefore Joint Motion for Sanctions by Defendants, Deputy Phillip Osting and Officer Scott Gates, ECF 68 , is GRANTED. Defendants are GRANTED until March 22, 2019 to file a bill of costs with a proposed judgment entry. Plaintiff is GRANTED until April 1, 2019 to object to Defendants' cost calculation. Signed by Judge Thomas M. Rose on 3/4/19. (ep)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Victor L. Smith,
Plaintiff,
v.

Case No. 3:15-cv-054
Judge Thomas M. Rose

City of Troy, et al.,
Defendants.

ENTRY AND ORDER GRANTING JOINT MOTION FOR
SANCTIONS BY DEFENDANTS, DEPUTY PHILLIP
OSTING AND OFFICER SCOTT GATES. ECF 68.

Pending before the Court is Joint Motion for Sanctions by Defendants, Deputy Phillip
Osting and Officer Scott Gates. ECF 68. Movants request that the Court sanction Plaintiff,
pursuant to Federal Rule of Civil Procedure 11, for filing, and refusing to withdraw a brief in
support of entry and certification of judgment. ECF 65.
I.

Background
On February 10, 2015, Plaintiff Victor L. Smith filed a complaint naming as Defendants

City of Troy, Ohio, S. A. Gates, H. Hohenstein, C. A. Madigan, Miami County, Ohio, and P. M.
Osting. ECF 1. In May 2016, Defendants filed two separate motions for summary judgment: one
by the City of Troy Ohio, S. A. Gates, H. Hohenstein, C. A. Madigan and another by Defendants
Miami County, Ohio, and P. M. Osting. ECF 48 and 51. On June 20, 2016, Plaintiff filed a
document designated “Reply” that was, in actuality, a response to these motions. ECF 55.
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Defendants filed replies, ECF 56 & 57, rendering the motions for summary judgment ripe.
Plaintiff did not file a motion for summary judgment.
On November 14, 2016, this Court granted summary judgment on Plaintiff's claims arising
under federal law. Plaintiff's remaining state-law claims were dismissed without prejudice. ECF
59
Plaintiff appealed. ECF 61. On November 1, 2018, the United States Court of Appeals
for the Sixth Circuit “REVERSE[D] the district court’s judgment granting summary judgment to
Deputy Osting on Smith’s claims that Osting used excessive force in taking him to the ground with
a leg sweep and in handcuffing him forcibly; REVERSE[D] the district court’s judgment granting
summary judgment to Officer Gates on Smith’s claim that Gates excessively deployed his Taser;
and REVERSE[D] that part of the district court’s judgment dismissing Smith’s pendent state-law
claims. [It] AFFIRM[ED] the remainder of the district court’s judgment and REMAND[ED] this
case to the district court for further proceedings consistent with this opinion.” ECF 62, PageID
1475-76.1
The Court came short of outright foreclosing the possibility of probable cause to arrest
Smith, commenting, “There is little in the record to suggest that Smith committed any crime, even
a minor one.” PageID 1471. The Court noted, “There are factual disputes concerning whether
Smith was involved in an automobile accident or whether he parked his car in the yard, and whether
he left the scene of an accident or simply wandered away in a stupor due to his seizure.” PageID

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The Court determined that this Court correctly granted summary judgment to Hohenstein and Madigan on Smith’s
excessive force claim, ECF 62, PageID 1473, and properly granted summary judgment to the City of Troy and
Miami County on Smith’s § 1983 claims, ECF 62, PageID 1473-74, and correctly granted summary judgment to the
defendants on Smith’s ADA claim. ECF 62, PageID 1474.
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1471. The Court additionally noted, “there is a factual dispute as to whether Smith actually
resisted Osting before Osting took him to the ground, or whether Smith merely failed to comply
with Osting’s order to return to the car.” PageID 1471. There is also a “factual dispute regarding
whether his failure to put one of his arms behind his back while lying face-down on the ground
constitutes ‘resistance’ sufficient to justify forcible handcuffing by Osting.” PageID 1471-72.
The reversal of summary judgment for Osting focused on the question of qualified
immunity. Viewing the evidence in the light most favorable to Smith, Osting is not entitled to
qualified immunity on Smith’s excessive force claim should a jury find that Osting knocked him
to the ground and landed on top of him. ECF 62, PageID 1471 “If Smith indeed had committed
no crime, if he was unarmed, and if no evidence was adduced that he posed a threat to himself or
to others, Osting’s forcible handcuffing of him would be excessive and in violation of wellestablished constitutional principles. Osting thus also was not entitled to qualified immunity for
his actions in this regard, especially given the fact that there is no evidence that Osting took Smith
to the ground for any reason other than to handcuff him and restrain him forcibly.” ECF 62, PageID
1472.
The reversal of summary judgment for excessive force in tasing Gates also focused on the
question of qualified immunity while distinguishing Osting’s potential liability. While Gates is
not entitled to qualified immunity on Smith’s excessive-force claim regarding repeated
deployment of the Taser on Smith, ECF 62, PageID 1473, “no reasonable juror could find that
Osting had the opportunity and the means to prevent Gates from tasing Smith excessively.” ECF
62, PageID 1472. The mandate issued. ECF 63,
On March 23, 2018, Plaintiff Victor L. Smith filed a “Brief with the Court.” ECF 65.

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Therein, Plaintiff argued that the Court was now bound to enter judgment in favor of Plaintiff on
questions of liability:
A. The Sixth Circuit found no Qualified Immunity present in Osting
Excessive Force I
Osting, by law, used excessive force against Mr. Smith in tackling
Mr. Smith. Further and definitively, “Osting is not entitled to
qualified immunity for this use of force.” Appellate Decision, Doc.
No. 62, PageID 1471. Osting used excessive force on Mr. Smith
contrary to the Fourth Amendment, under these facts and the Law
of the Case I, without qualified immunity for his actions, and is
therefore liable for damages under 42 U.S.C. §1983.
B. The Sixth Circuit found no Qualified Immunity present in Osting
Excessive Force II
The Sixth Circuit holding mandates that Osting is not entitled to
qualified immunity for the attempted handcuffing of Mr. Smith,
without equivocation. “Osting thus also was not entitled to
qualified immunity for his actions in this regard, especially given
the fact that there is no evidence that Osting took Smith to the
ground for any reason other than to handcuff him and restrain him
forcibly.” Appellate Decision, Doc. No. 62, Page 1472. It follows
that Osting used excessive force on Mr. Smith contrary to the Fourth
Amendment, under these facts and the Law of the Case II, without
qualified immunity for his actions, and is therefore liable for
damages under 42 U.S.C. §1983.
C. The Sixth Circuit found no Qualified Immunity present in Gates
Excessive Force
Further, the Sixth Circuit found explicitly that Gates was not entitled
to qualified immunity on this aspect of Smith’s excessive-force
claim. See Appellate Decision, Doc. No. 62, Page ID 1473. It
follows that Gates used excessive force on Mr. Smith contrary to the
Fourth Amendment, under these facts and the Law of the Case III,
without qualified immunity for his actions, and is therefore liable to
Mr. Smith for damages under 42 U.S.C. §1983.
PageID 1491-92.
Plaintiff concludes: “The conclusion is inevitable that there has already been a finding that
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both Defendants Osting and Gates used excessive force against Mr. Smith without immunity.”
PageID 1494. “Certification and entry of judgment, on behalf of Mr. Smith, is appropriate to
establish both ‘excessive force’ and denial of qualified immunity upon both Osting and Gates in
all excessive force matters forward, transforming any further litigation into a ‘damages-only’ suit.”
PageID 1495.
While there was no motion pending, Defendants felt compelled to respond with a brief as
if there were. See ECF 66, “Brief re 65 Brief by Defendants City of Troy Ohio, S A Gates, H
Hohenstein, C A Madigan, P M Osting.” Plaintiff filed a reply, as if it had a pending motion. See
ECF 67, “Reply re 65 Brief In Support of Entry and Certification of Judgment.”
On March 26, 2018, Defendants provided Fisher v. Harden, 398 F.3d 837 (6th 2005), as
legal authority to Plaintiff’s counsel and requested that he withdraw his brief. ECF 68, PageID
1534. On April 13, 2018, Defendants served a copy of their Rule 11 motion on Plaintiff and again
requested he withdraw the brief. They then filed Joint Motion for Sanctions pursuant to Federal
Rule of Civil Procedure 11. ECF 68. This motion is now ripe.
II.

Standard
Rule 11 of the Federal Rules of Civil Procedure provides in relevant part:
(b) Representations to the Court. By presenting to the court a
pleading, written motion, or other paper--whether by signing, filing,
submitting, or later advocating it--an attorney or unrepresented party
certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
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extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity
to respond, the court determines that Rule 11(b) has been
violated, the court may impose an appropriate sanction on
any attorney, law firm, or party that violated the rule or is
responsible for the violation.
Absent exceptional
circumstances, a law firm must be held jointly responsible
for a violation committed by its partner, associate, or
employee.
(2) Motion for Sanctions. A motion for sanctions must be
made separately from any other motion and must describe
the specific conduct that allegedly violates Rule 11(b). The
motion must be served under Rule 5, but it must not be filed
or be presented to the court if the challenged paper, claim,
defense, contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within another time
the court sets. If warranted, the court may award to the
prevailing party the reasonable expenses, including
attorney's fees, incurred for the motion.
(3) On the Court's Initiative. On its own, the court may order
an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule
11(b).
(4) Nature of a Sanction. A sanction imposed under this rule
must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated.
The sanction may include nonmonetary directives; an order
to pay a penalty into court; or, if imposed on motion and
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warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable
attorney's fees and other expenses directly resulting from the
violation.
Fed. R. Civ. P. 11.
Rule 11 requires that the legal contentions in any pleading, written motion or other paper
be warranted by existing law or by a non-frivolous argument for the extension, modification or
reversal of existing law. See gen. Fed. R. Civ. P. 11. “[T]he test for whether Rule 11 sanctions
are warranted is whether the conduct for which sanctions are sought was ‘reasonable under the
circumstances.’” Salkil v. Mount Sterling Twp. Police Dep't, 458 F.3d 520, 528 (6th Cir. 2006).
The rule makes the imposition of sanctions for violations discretionary, rather than
mandatory. Ridder v. City of Springfield, 109 F.3d 288, 293–95 (6th Cir. 1997) (citing Fed. R. Civ.
P. 11(c)).

In line with Rule 11's ultimate goal of deterrence, rather than compensation, the

amended rule de-emphasizes monetary sanctions and discourages direct payouts to the opposing
party. Id. (citing Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendments)).
In the Advisory Committee Notes, the drafters correspondingly state:

These provisions are intended to provide a type of “safe harbor”
against motions under Rule 11 in that a party will not be subject to
sanctions on the basis of another party's motion unless, after
receiving the motion, it refuses to withdraw that position or to
acknowledge candidly that it does not currently have evidence to
support a specified allegation.... [T]he timely withdrawal of a
contention will protect a party against a motion for sanctions.
Ridder v. City of Springfield, 109 F.3d 288, 293–95 (6th Cir. 1997) (citing Fed. R. Civ. P. 11
Advisory Committee Notes (1993 Amendments).
III.

Analysis

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Defendants assert that Plaintiff’s bench brief in support of entry and certification of
judgment is frivolous. (ECF 65, PageID 1531). According to Defendants, “It is contrary to both
law and common sense to transform an appellate court’s opinion reversing a district court’s grant
of summary judgment for certain parties as tantamount to granting summary judgment in favor of
the other party.”
Defendants cite to the Court and provided to Plaintiff the case of Fisher v. Harden, 437 F.
Supp. 2d 700, 704 (S.D. Ohio 2006), a case from this district considering the same question. The
Fisher district court opinion on remand examined the appellate decision, Fisher v. Harden, 398
F.3d 837 (6th 2005), for direction on how to proceed:

In deciding Plaintiff's appeal, the Court of Appeals was
required to view the evidence in the light most favorable to Plaintiff,
and further to draw all reasonable inferences in Plaintiff's favor.
The Court of Appeals explicitly acknowledged this standard of
review numerous times throughout its opinion. The Court of
Appeals first stated, “[i]n considering such a motion [for summary
judgment], the court views the evidence in the light most favorable
to the non-moving party and draws all reasonable inferences in favor
of
the
non-moving
party.” Fisher, 398
F.3d
at
841, citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).

In addressing the qualified immunity issue, the Court of
Appeals noted, “[i]n the initial inquiry, we must consider ‘this
threshold question: [t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer's conduct
violated a constitutional right?’.” Id. at 842, quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001); see PageID 1470. The Sixth
Circuit further explained, “[v]iewing the facts in the light most
favorable to him, we find that Fisher has established a violation of
his Fourth Amendment rights,” and “[v]iewing the evidence in the
light most favorable to Fisher, we must reject the sentiments of the
dissent that the deputies were ‘merely securing the scene.’ ” Id. at
844, 846.
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Fisher v. Harden, 437 F. Supp. 2d 700, 704 (S.D. Ohio 2006). “Contrary to his assertions,
Plaintiff is not entitled to any such preferential consideration at this stage of the case. A jury is
not required to view the evidence in the light most favorable to Plaintiff, nor is a jury required to
draw all reasonable inferences in Plaintiff's favor. If the Court were to grant Plaintiff's motion for
judgment based on the ‘law of the case,’ Defendants would be deprived of their day in court.” Id.
Plaintiffs contend that Fisher is not binding authority and assert that Defendants have not
come forward with binding authority. This is true–possibly because “[s]ome claims are so
obvious or obscure that they have not been made before.” Orin S. Kerr, A Theory of Law, 16 GREEN
BAG 2D 111 (2012). One can, however, resolve the merits of Plaintiff’s brief by means of turning
to a treatise on the basics of federal practice:
The nature of summary judgment rulings is such that further trialcourt proceedings may lead to the same result as a reversed summary
judgment determination.
Law of the Case—Mandate Rule, 18B FED. PRAC. & PROC. JURIS. § 4478.3 (2d ed.).
Moreover, there is no procedural vehicle to effectuate the outcome Plaintiff advocates.
Plaintiff has not moved for summary judgment on liability, and thus, it was not possible for
Plaintiff to appeal a denial of a motion for summary judgment in his favor–much less for the Court
of Appeals to reverse such a decision.
“There is little in the record to suggest that Smith committed any crime, even a minor one.”
PageID 1471. Indeed, should a jury determine that Plaintiff was in violation of Troy City
Ordinance § 345.09, “Parking of Motor Vehicles on Lawns Prohibited,” Plaintiff would only be in
violation of a minor misdemeanor, id., and not subject to arrest. United States v. Patterson, No.
5:14-CR-00289, 2014 WL 6604589, at *1 (N.D. Ohio Nov. 20, 2014).
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But, a jury could find Plaintiff in violation of City of Troy Ordinance § 541.03, Criminal
Damaging or Endangering:
(a) No person shall cause, or create a substantial risk of physical
harm to any property of another without the other person’s consent:
(1) Knowingly, by any means;
(2) Recklessly, by means of fire, explosion, flood, poison
gas, poison, radioactive material, caustic or corrosive
material, or other inherently dangerous agency or substance.
(b) Whoever violates this section is guilty of criminal damaging or
endangering, a misdemeanor of the second degree.
City of Troy Ordinance § 541.03.
While there is little in the record read in the light most favorable to Plaintiff to suggest that
Smith committed a crime, PageID 1471, a reasonable juror could find that what Officer Osting
observed upon arrival, a car driven into a snow-covered yard, constituted criminal damaging. See,
e.g., Ohio v. Baker, 2010-Ohio-1290 2010 WL 1177343 (Ohio App. March 29, 2010) (defendant
charged with criminal damaging after she allegedly drove her car on the victims’ lawn and left tire
marks in the grass”); see also Degenova v. Sheriff of DuPage Cty., No. 97 C 7208, 2001 WL
1345991, at *6 (N.D. Ill. Oct. 31, 2001); and Kozel v. Vill. of Dolton, 804 F. Supp. 2d 740, 745
(N.D. Ill. 2011).2
Granted, it is equally, if not more, plausible that the semi-clothed Plaintiff had obtained
prior permission to park in the snowy yard—presumably from someone other than the person who

2

“If the circumstances, viewed objectively, support a finding of probable cause, [then] the
arresting officer's actual motives are irrelevant.” Criss v. City of Kent, 867 F.2d 259, 262 (6th
Cir. 1988). District court may consider alternative grounds that neither it nor appellate court
previously considered. Moore v. WesBanco Bank, Inc., 612 F. App'x 816, 820 (6th Cir. 2015).
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had called to complain about the car in the yard and loud music. PageID 1471. There are realms
of possibilities. A jury will decide.
Similarly, the Court noted, “there is a factual dispute as to whether Smith actually resisted
Osting before Osting took him to the ground, or whether Smith merely failed to comply with
Osting’s order to return to the car.” PageID 1471. There is also a “factual dispute regarding
whether his failure to put one of his arms behind his back while lying face-down on the ground
constitutes resistance sufficient to justify forcible handcuffing by Osting.” PageID 1471-72.3
Rule 11 imposes on attorneys a duty to reasonably investigate factual allegations and legal
contentions before presenting them to the court. Fed. R. Civ. P. 11(b). The threat of sanctions
encourages keen observance of this duty. See Ridder, 109 F.3d at 294 (“Rule 11's ultimate goal
[is] deterrence, rather than compensation....”). Penn, LLC v. Prosper Bus. Dev. Corp., 773 F.3d
764, 766–67 (6th Cir. 2014). Plaintiff, in advocating for entry of judgment in his favor in the
absence of a motion for summary judgment, contrary to the clear direction of the United States
Court of Appeals for the Sixth Circuit in an order that repeatedly emphasized that it was limited to
a version of facts that “[v]iew[ed] the record in the light most favorable to Smith” PageID 1471,
1471, 1473, failed this duty.
Wherefore Joint Motion for Sanctions by Defendants, Deputy Phillip Osting and Officer
Scott Gates, ECF 68, is GRANTED. Defendants are GRANTED until March 22, 2019 to file a
bill of costs with a proposed judgment entry. Plaintiff is GRANTED until April 1, 2019 to object

3

The district court correctly granted summary judgment to Hohenstein and Madigan on Smith’s excessive force
claim. ECF 62, PageID 1473. The district court properly granted summary judgment to the City of Troy and Miami
County on Smith’s § 1983 claims. ECF 62, PageID 1473-74. The district court correctly granted summary
judgment to the defendants on Smith’s ADA claim. ECF 62, PageID 1474.
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to Defendants’ cost calculation.
DONE and ORDERED in Dayton, Ohio, this Monday, March 4, 2019.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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