Guglielmo v. Montgomery County, Ohio and the Montgomery County Board of Commissioners et al

Filing 214

ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 123 ): All claims against Officers Cooper and Cohn are DISMISSED; Sgt. Snyder and Officers Zink, Sears and Ort are DENIED summary judgment on the basis of qualified immunity due to the existence of genuine issues of material fact; except with respect to such a claim against Sgt. Snyder, 42 U.S.C. § 1983 claims of deliberate indifference to serious medical needs brought against the indivi dual defendants are DISMISSED; the claims against Sheriff Plummer, Sgt. Snyder, and Officers Zink, Sears, and Ort in their official capacities are DISMISSED; the claims against Sheriff Plummer in his individual capacity are DISMISSED; the claim against Montgomery County based exclusively on its alleged ratification of the use of force against Guglielmo is DISMISSED; and all other claims shall proceed to trial. Signed by Judge Thomas M. Rose on 5/28/19. (ep)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOSEPH GUGLIELMO,

:
Case No. 3:17-cv-6
:
Plaintiff,
:
Judge Thomas M. Rose
:
v.
:
:
MONTGOMERY COUNTY, OHIO, and
:
the MONTGOMERY COUNTY BOARD OF :
COMMISSIONERS, et al.,
:
:
Defendants.
:
______________________________________________________________________________
ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. 123)
______________________________________________________________________________
This case is before the Court on the Motion for Summary Judgment (Doc. 123) filed by
Defendants Montgomery County, Ohio and the Montgomery County Board of Commissioners,
Sheriff Phil Plummer, and Officers Matthew Snyder, Zachary Zink, Matthew Sears, David Cohn,
Brandon Ort, and Benjamin Cooper. Plaintiff Joseph Guglielmo alleges that, while incarcerated
at Montgomery County Jail as a pretrial detainee, Defendant Matthew Snyder repeatedly struck
him in the head for banging on his cell door and creating a disturbance. Guglielmo claims
Defendants are liable for his resulting injuries under 42 U.S.C. § 1983 for using excessive force
and acting with deliberate indifference to his medical needs in violation of his constitutional rights.
Guglielmo further alleges the mistreatment he suffered is part of a custom or policy of permitting
the use of excessive force against pretrial detainees at Montgomery County Jail.
Defendants move for summary judgment on the basis of qualified immunity and on the
basis that there is no genuine issue of material fact and they are entitled to judgment as a matter of

law. This matter is fully briefed (Docs. 123, 134, 142) and ripe for review. For the reasons below,
the Motion for Summary Judgment (Doc. 123) is GRANTED IN PART and DENIED IN PART.
FACTS
The following recitation of facts includes the evidence, including witness testimony,
espoused by both Guglielmo and Defendants. The parties dispute key facts regarding what
happened inside Guglielmo’s cell on January 15, 2015. Depending on the jury’s assessment of the
credibility of the parties’ witnesses, the narrative may change significantly. The Court discusses
how a reasonable juror could construe the facts in the light most favorable to Guglielmo, the nonmovant, in the analysis portion of this Order.
A.

Guglielmo’s Arrest

Prior to the events giving rise to this case, Guglielmo was a fifty-seven-year-old homeless
veteran of the United States Air Force residing at Gettysburg Gateway Homeless Shelter for Men
(“Gateway”) in Dayton, Ohio. At approximately 12:41 a.m. on January 15, 2015, Dayton police
officers arrested Guglielmo for assaulting a staff member at Gateway. While placing Guglielmo
in handcuffs and escorting him to their police cruiser, the officers noticed an abrasion to
Guglielmo’s forehead.

In accordance with policy, they transported Guglielmo directly to

Grandview Hospital for medical clearance.
An attending physician at Grandview Hospital saw Guglielmo. The physician’s notes state,
“Joseph Guglielmo is a fifty-seven year old male who presents with assault […] abrasion to his
forehead. Patient is complaining of pain over the abrasion site. Patient did not lose consciousness.
Patient does complain of a mild headache but denies any neck or back pain.” Guglielmo was
discharged from the hospital with a diagnosis of a forehead abrasion and taken to Montgomery
County Jail (the “Jail”) for booking.

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B.

Guglielmo is Booked into the Montgomery County Jail

The Dayton police officers booked Guglielmo into the Jail at approximately 2:25 a.m. on
January 15, 2015. Guglielmo recalls that the “Sheriff” was very nice and cordial when he was
booked. Guglielmo has no recollection of anything that happened at the Jail after his booking.
Defendant Sergeant Matthew Snyder (“Sgt. Snyder”) met Guglielmo during the booking
process. Sgt. Snyder recalled that Guglielmo was upset. According to Sgt. Snyder, they talked
about the circumstances leading up to Guglielmo’s arrest, Guglielmo’s injury to his face, and that
they had both served in the military. Sgt. Snyder testified that normally a sergeant would not be
involved in the booking process.

In this case, however, Guglielmo arrived at the jail

uncooperative, and therefore additional officers were needed.
Once booked into the Jail, NaphCare medical staff saw Guglielmo for his medical intake
screening.1 A NaphCare EMT is responsible for the intake screening of detainees at the Jail. The
intake screening includes taking vital signs, making a history of allergies, medications, medical
conditions, noting any type of physical trauma that the medic can see while the EMT is doing the
screening, symptoms of withdrawal from drugs or alcohol, and any indications of self-harm. The
EMT also initiates prescription verification by outside healthcare providers.
The medical records from Guglielmo’s medical intake screening indicate that NaphCare
staff placed orders for certain prescription medication for Guglielmo. The EMT’s notes state,
“ABCs intact no distress. Inmate alert and oriented in cell MHD 133, refused to get up to come
answer medical questions, refuses to provide information in cell, abrasion noted to forehead,
hospital discharge paperwork in NP/MD box. Treated at Grandview Medical Center.” At
approximately 11:27 a.m. that same day, another entry states, “Now reports anxiety and sleep

1

Montgomery County contracts with NaphCare, Inc., to provide medical care, treatment and services, including
distribution and ordering of medicine for detainees in the Jail.

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issues, states he gets meds from the VA. Added to reconciliation.” NaphCare staff made
additional entries within the same hour regarding “drug reconciliation” for various prescription
medications.
C.

Guglielmo is Relocated from Delta Pod to Transport Staging

Guglielmo was initially housed in Delta Pod Cell 429, a general population area of the
Jail. Defendant Officer Matthew Sears (“Officer Sears”) testified that Guglielmo became highly
agitated and disruptive, however, and had to be moved. According to Officer Sears, Guglielmo
was upset about not getting his medication—he did not have it yet—and was taking physically
threatening stances in his cell. Officer Sears testified that Guglielmo also verbally threatened to
assault his cellmate.
Sergeant Richard Whalen (“Sgt. Whalen”) also addressed Guglielmo’s disturbance in
Delta Pod and participated in the decision to relocate him to an unoccupied area of the Jail called
Transport Staging. Sgt. Whalen first interacted with Guglielmo in Delta Pod at roughly 10:00 p.m.
on January 15, 2015. Sgt. Whalen testified that Guglielmo was agitated and his “main issue
seemed to be about medical, either they were not giving him his meds or he was not getting the
appropriate meds.” Sgt. Whalen and Sergeant Vitali decided to relocate Guglielmo because he
kept yelling and it was 10:00 p.m. They had an obligation to the rest of the inmate population to
remove Guglielmo from the area so the other inmates could sleep. Sgt. Whalen testified that
removing an inmate to Transport Staging is “a technique that we have used many, many times,
and in general, it is successful. It causes people to settle down because they no longer have an
audience, and it’s worked before and it was my hope that it would work that night.” Guglielmo
was placed in Transport Staging Cell 114 at approximately 10:00 p.m.

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D.

Guglielmo Creates a Disturbance in Transport Staging

Once in Transport Staging, Guglielmo requested and received a medical review at
approximately 10:44 p.m. on January 15, 2015. The Samaritan Behavioral Health employee who
saw Guglielmo noted that Guglielmo was depressed, tearful, and having hopeless thoughts. Her
notes further state that Guglielmo was agitated and irritable and she was referring him to a
NaphCare doctor.
Defendant Officer Benjamin Cooper (“Officer Cooper”) was working in the Jail’s security
control room that night. He wrote an incident report for that evening, even though he was not with
Guglielmo when he suffered his injuries, “to demonstrate that while in security control, I heard a
loud noise within the area that is responsible for access control as well as the safety of the jail,
among other things.” Officer Cooper stated in his report:
On January 15, 2015, I was assigned as the Security Control Officer on first watch.
At approximately 2330 hours, while attending my post, I could hear a loud banging
noise coming from the wall behind my workstation. The banging was apparently
coming from Transport Staging, which is located directly behind Security Control.
While checking cameras in Transport Staging, I was able to determine the loud
sound was coming from the inmate in the cell directly attached to the rear wall of
Security Control. I was able to see an inmate throwing himself into and striking the
door. The sound caused by the inmate in the cell were loud enough that it began to
hinder my ability to hear my jail radio.
Sgt. Snyder began roll call (the pre-shift meeting when officers report and receive
information pertinent to their shift) shortly after arriving at the Jail at 11:15 p.m. on January 15,
2015. He was the booking sergeant and in charge of the first floor of the Jail. His incident report
states that, at about 11:30 p.m., he “was conducting a roll call on the jail platform with the first
watch corrections staff. Inmate Guglielmo began banging and punching the cell door and glass in
TRS #114. Once roll call was complete at 2334 hours, I gathered several officers and a large can
of O.C. pepper spray and responded to TRS #114 to address the disturbance.”

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Sgt. Snyder described the disturbance as the sound of metal banging, as if Guglielmo might
have been banging on the metal toilet and connected plumbing. Sgt. Snyder testified that potential
concerns over an inmate banging in a cell are that “if they’re banging to the point where they’re
going to hurt themselves, damage the property which they’ll hurt themselves before they damage
the property usually or they’re affecting the operation of the jail, the cell he was in was close to
security control and he was affecting the operation.” The Transport Staging area is separated from
the booking sergeant’s office by a window.
Officer Sears, who was present during roll call, testified that it sounded like Guglielmo was
banging with a closed fist on the glass window of the cell door and screaming. The Jail security
footage of the Transport Staging area captures Mr. Guglielmo banging non-stop on his cell door
for over five minutes with only intermittent pauses. The banging on video becomes increasingly
aggressive over time. The banging ceases with the arrival of Sgt. Snyder and other officers at his
cell door starting at approximately 11:33:30 p.m.
Sergeant Eric Banks (“Sgt. Banks”) was at the Jail that night. He testified that, during roll
call, Sgt. Snyder became visibly upset after being interrupted a few times by Guglielmo.
According to Sgt. Banks, Sgt. Snyder was red in the face, biting his lip, and then “[Snyder] made
a comment to the effect of after roll call, we’re going to go back there and beat that crazy fucker’s
ass.” (This testimony is not consistent with Sgt. Snyder’s testimony that he went to Transport
Staging due to concerns about Guglielmo’s safety and Jail security.) Another officer present that
night, Sergeant Feehan (“Sgt. Feehan”), also testified that Sgt. Snyder said “we’re going to go back
there and beat that crazy fucker’s ass.”
Sgt. Snyder did not recall making these statements and further testified he did not know
who was making the disturbance, much less that it was an old man. Officer Sears also did not

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recall hearing Sgt. Snyder say anything about beating Guglielmo after roll call. Officer Sears
qualified that testimony, however, by adding that he also was not paying attention at that time. In
addition, Officers David Cohn and Brandon Ort, who are also Defendants, also did not recall
hearing Sgt. Snyder say he was going to beat the person making the disturbance. Finally, Officer
Kyle Chmiel, who is not a Defendant, also did not hear Sgt. Snyder say anything to that effect.
E.

Sgt. Snyder Addresses the Disturbance Caused by Guglielmo

Before leaving for Guglielmo’s cell, Sgt. Snyder went to the booking sergeant’s office to
get a large can of pepper spray (which Sgt. Baker provided), told Sgt. Feehan to get a handheld
camera, and gathered five other officers to accompany him. Sgt. Snyder testified that he asked for
a handheld camera because he thought the situation could end in a use of force. Policy required a
sergeant to use a handheld camera to record incidents that could lead to uses of force.
Before going to the cell, Officer Sears told Sgt. Snyder that Guglielmo was causing a
disturbance because he wanted his medication and had already been told that “med pass” would
happen in the morning. Sgt. Snyder said he still wanted to go to Guglielmo’s cell. In response,
Officer Sears said, “I don’t know if you’re going to be able to talk to him. He’s already been
explained it two or three times, I don’t know if you’re going to get anything through to him.” Sgt.
Whalen, who had also dealt with Mr. Guglielmo on the prior shift, intercepted the group on their
way to the cell, and told them “he’ll settle down, just give him time, he’ll settle down.”
Officers Cohn, Sears, Ort, and Zachary Zink (all Defendants) and Officer Kyle Chmiel (not
a Defendant) accompanied Sgt. Snyder to Guglielmo’s cell. Sgt. Banks and Sgt. Feehan did not
join the group, although Sgt. Snyder had asked Sgt. Feehan to get a handheld camera. Sgt. Banks
said to Sgt. Feehan, “I’m not going back there and getting involved in that.” Sgt. Feehan
responded, “No, I don’t want anything to do with it.” Sgt. Banks testified that, in his opinion, Sgt.

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Snyder “was very confrontational,” operated “in the gray” and “[did]n’t follow policies and
procedures.” Sgt. Banks testified that Sgt. Snyder “liked to show people who was in charge.”
When asked why he brought other officers with him to Guglielmo’s cell, Sgt. Snyder
testified, “Well, he had been brought down for a discipline problem. He was being very turbulent
and loud and profane and it may have taken three or four people to deal with him.” Sgt. Snyder
testified his plan was to “see why [Guglielmo] was banging and see if we could make him stop.”
Upon reaching the cell, Sgt. Snyder recognized Guglielmo from his booking and Guglielmo
stopped banging.
Sgt. Snyder testified Guglielmo told him that he did not want to be in the Jail and wanted
to go to the VA. Sgt. Snyder responded that he could not go to the VA. At this point, Officer
Sears suggested that Sgt. Snyder not enter the cell, but instead talk to Guglielmo through the door
or open the food port so he could hear better. Sgt. Snyder ordered Guglielmo to step back from
the door. Guglielmo complied. Sgt. Snyder then asked Officer Zink to open the cell door.
Officers Zink, Ort, and ultimately Sears followed Sgt. Snyder into the cell, but all three
officers testified that there was no reason to enter the cell because Guglielmo was calm. Sgt.
Snyder testified that he decided to enter the cell so that he “could speak to [Guglielmo] clearer,
more personal.” Sgt. Snyder testified that he believed he had established a rapport with Guglielmo
the night before: “We had a brief but productive conversation and I didn’t have any more problems
out of him the rest of my shift the night before, so I thought I could do the same that night.”
There is no video footage of what happened inside of Guglielmo’s cell because Sgt. Snyder
entered the cell before he was brought the handheld camera that he had requested. In addition, the
Jail’s security cameras could not record the interior portion of the cell where Guglielmo was seated.
Officers Zink and Ort entered the cell behind Sgt. Snyder. Officer Sears stood just outside the

8

door with Officers Cohn and Chmiel. Sgt. Snyder testified the following occurred upon entering
the cell:
Q. What happened after Zink opened the door?
A. I said sit down and he sat down.
Q. Then what?
A. We started—I said what’s going on, what do you need, why are you so upset
and he said—he said he wanted to go to the V.A. Medical Center.
Q. Okay.
A. I think he told me he had PTSD. I said I remember that from the night before
when we had the conversation. And he said—I don’t think he recognized me
initially and I reiterated—reiterated, we discussed—I repeated the same
conversation we had the night before.
Q. Okay. And did he respond?
A. I think he remembered. He—the conversation was he went in the Air Force—
the night before I said where are you from, you’re not from Dayton. He said I’m
from the Bronx. I said why didn’t you go—I said were you in the Navy. He said,
no, I didn’t go in the Navy, all Navy guys are faggots; and I started laughing. And
I said they are and he’s like, yeah. I said, that’s funny. I said I was in the Army. I
didn’t like the uniforms in the Navy, and he said I went in the Air Force. He said
my grandpa was in the Air Force, and we talked about that again and that’s how it
went.
I mean, we just—we started discussing our military careers again and then he said
I need to go to the V.A. And I said you can’t go to the V.A., Joe, you’re in jail. He
said I want—I need my medication. And I went through the whole process of how
you get medications from the jail—from the V.A. [...].
Q. And then what?
A. At some point he—it was just kind of an impasse. He—he didn’t like—he wasn’t
going to the V.A., that was the bottom line. You can’t go, you’re not going. I mean,
the goal was to get him housed into another location out of transport cell and you
could just tell his whole demeanor changed from a casual conversation to—to
antagonized [...].
Q. And then you said his demeanor changed?
A. Yes, sir.

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Q. And what prompted that?
A. That the answer was, no, he wasn’t going anywhere besides jail.
Sgt. Snyder explained what he meant by his statement that Guglielmo’s “whole demeanor
changed,” testifying “He set his jaw, his shoulders started to roll, he clenched his fists, he started—
I believe he started talking through his teeth like so (indicating). His demeanor changed. He went
from listening and carrying a conversation to aggressive and having that fight response, appearance
of fight response.”
Relevant to this change in demeanor, Officer Zink testified, “I don’t recall if [Sgt. Snyder]
said, you know, you are a faggot or if he said the – I know the word faggot was used” and “it was
shortly after that [Guglielmo’s] demeanor changed.” Officer Sears, standing just outside the cell,
“heard Mr. Guglielmo state I’m not a faggot” and “that’s when [Guglielmo] stood up and then
started yelling at [Sgt. Snyder].” Soon after the incident was over, Officer Sears told Sgt. Banks
“that Snyder called the guy a faggot. And the guy said, I ain’t no faggot, and maybe mentions
something about being in the Army or something. And then Snyder called him a faggot again.
And the guy stood up because he was mad that Snyder called him a faggot again.”
Sgt. Snyder testified that, to the extent he said the word “faggot,” he was merely repeating
the same use of the word by Guglielmo during booking the night before. Per Sgt. Snyder’s
testimony:
Q. Deputy Zink testified that you said the word faggot.
A. I did.
Q. And at the time you were only speaking with Mr. Guglielmo, right?
A. When I used the word—the term faggot?
Q. Yes.

10

A. Yes. He—he said he did not join the Navy the night before because all sailor[s]
are faggots because he grew up in the Bronx, Navy town. I said why didn’t you join
the Navy? He said all sailors are faggots. I said, okay, I’ve got it, the Navy guys are
faggots.
Q. That’s what he said the night before?
A. That’s the night before. When I came into the cell, we went back over it. Like I
said, I don’t think he recognized me. I said you remember last night we were talking
about you were in the Air Force, my grandfather was in the Air Force, I went in the
Army, you didn’t go in the Navy because sailors are faggots and he goes, yes, or he
said something—repeated the word faggot.
[...]
Q. Did you say all you Air Force guys are faggots?
A. Absolutely not.
Q. Did you call him a faggot?
A. I did not.
Q. So I don’t understand if you didn’t call him a faggot, what triggered the change
in his demeanor?
A. Because I told him, no, he couldn’t go to [the] V.A.
Sgt. Snyder was standing when he spoke to Guglielmo, who was seated in the cell. When
Guglielmo’s demeanor changed, however, he stood up. According to Officer Ort, Officer Zink
and Sgt. Snyder, Guglielmo then grasped and pulled Sgt. Snyder’s left forearm. Officer Sears
estimated that, for about four or five seconds, Sgt. Snyder ordered Guglielmo to let go. After those
four or five seconds passed, Sgt. Snyder struck Guglielmo. Sgt. Snyder testified that he struck
Guglielmo in the right side of his head, punched him in the gut, and then struck him in the left side
of the head. After those three blows, Guglielmo let go of Sgt. Snyder. Sgt. Snyder admitted that
he punched Guglielmo one more time in the left side of his head when Guglielmo was no longer
touching him.

11

Officer Sears testified the use of force lasted approximately five seconds. Guglielmo’s
counsel argues that the use of force against Guglielmo lasted up to forty-nine seconds based on
their analysis of the witness testimony against the security video footage from outside the cell.
Defendants dispute this estimate and reference the officers’ testimony that the entire incident took
seconds to escalate and resolve.
Sgt. Snyder testified that he was required to use force against Guglielmo based on the
following actions:
Q. Okay. So he started to stand up. Then what happened?
A. I moved a step or so closer and put my arms out like this and said don’t stand up
(indicating).
Q. So you put both arms out in front of you.
A. Yes, sir.
Q. With your palms facing him?
A. Yes.
Q. Okay. And then what happened?
A. He grabbed my arms.
Q. How did he grab your arms?
A. Like this (indicating).
Q. So he—what part of your arms did he grab?
A. Like right here (indicating).
Q. Did he grab—[...] your forearms?
A. My forearms, yes.
Q. And were his hands on top of your forearms or was he grabbing from beneath?
A. I believe it was underneath like this (indicating).
Q. His thumbs were on top?

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A. Correct.
Q. And his fingers were below?
A. As best I recall, yes.
Q. All right. Then what happened?
A. He started pulling me towards him.
Q. Then what?
A. I hit him.
Q. How did you hit him?
A. With my left arm, I believe this one and if I’m accurate, the recollection of my
report, I either hit him with this part of my forearm or my elbow (indicating).
Q. So either the outside part or your forearm or elbow?
A. Yeah.
Q. On your left arm?
A. My left arm, yes.
Q. Was he still holding your left arm at the time?
A. I would have to look at the report. I don’t recall the exact series of how it went,
sir. May I do that?
Q. No, we’re just going to talk through it and then just tell me to the best of your
recollection.
A. Okay.
Q. So you don’t know—you can’t remember if he was grabbing your arm or not at
that time?
[...]
A. He had my—I know he still had my right arm.
Q. Okay.
A. There’s a point where he let go of my left arm.
Q. How did you get your left arm free?

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A. That’s why I would have to look at the use of force report, sir. I struck him—
there’s two forearm strikes during this event and one he still had hold and one he
did not have hold at the time. I would have to look to get the actual breakdown
correctly.
Q. Did you say anything to him before you hit him?
A. I said let go of me.
Q. Did you say that prior to hitting him or as you were hitting him?
A. Prior and as. It was pretty rapidly evolving. I mean, he’s pulling—I’m standing.
I have my arms out. He’s sitting grabbing and starts to pull as he’s attempting to
stand using me to pull up. I thought—I started to go off—I was still standing flat
footed. Like I said, I think it was—I didn’t think there was going to be any use of
force because I was talking to him and everything was fine. And he just went from
the communicating, to upset, to trying to stand, to grabbing, to pulling and I thought
I was going to smash my face on that concrete wall behind him.
[...]
Q. –were you able to push him back into the seat?
[...]
A. I didn’t have any contact with him when I put my hands out.
Q. Okay. So when you struck him with your left forearm and elbow, how did he
respond?
A. He grabbed my right arm with both his arms or he added his right arm to my
right arm at that time.
Q. So at that point how was he holding your right arm?
A. Like a golf club, hand over—I don’t know if he tucked his thumb but hand over
hand (indicating).
Q. And was he—where—was he seated at that point?
A. Yes.
Q. And then what happened?
A. He’s still pulling on my arm, has hold of my arm and I hit him in the abdomen
with a closed fist with my left hand.
Q. How did he respond?

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A. He doubled over and went all of the way down on his bottom but he still had
hold of my right wrist.
Q. So he—what do you mean by doubled over.
A. He was up pulling, I hit in the stomach and it knocked the air out of him a little
and he went—sat all of the way down.
[...]
Q. All right. So he doubled over and then was fully on his bottom and what
happened next?
A. I was trying to pull—I’m telling him to let go repeatedly. I’m trying to pull my
right arm out of his grasp, pull backwards.
Q. Okay. Then what?
A. He was still latched onto my right arm and pulling me forward towards the wall.
So I—going backward didn’t work, so I went forward and hit him with my right
forearm or elbow (indicating).
[...]
Q. So you were pulling him towards you and then—
A. He’s pulling me towards him and I’m trying to pull backwards away from him
which is not working.
Q. Okay. He’s still got a grasp?
A. He’s still this way.
Q. So you throw your—
A. I just go—I just go with his pull and I just leaned in and go like that (indicating).
Q. And did that break his grip?
A. Yes.
Q. Where did you strike him?
A. I’m looking at your face. I’m sorry. Left side of the face. Left cheek area, I
believe.
Q. That could have been with your elbow or your forearm?
A. Yes.

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Q. And then what happened?
A. I started to regain my balance and back pedal a little bit or stand up straight and
he—like I said, he was—he had his arms out and he started to lunge forward like
he was going to hug my waist.
Q. Okay. What happened?
A. I struck him one last time.
Q. How did you strike him?
A. With a closed fist.
Q. So what part of him?
A. The side of his head or top. One or the other. [...]
Q. And then what happened after that punch?
A. He went on to the bench, pulled his legs up and said I’m done, I’m done and said
I’m sorry, I’m sorry—or I’m done, I’m sorry, something to that extent.
[...]
Q. And what did you do?
A. Backed out of the cell, shut the door.
While Sgt. Snyder was striking Guglielmo, Officers Zink, Ort, and Sears were inside the
cell but did not intervene. They all testified that they did not believe Sgt. Snyder was at risk of
harm. Officer Sears testified:
Q. ... Did you try to assist Snyder at any point?
A. No.
Q. Why not?
A. I didn't feel like there was a threat that I needed to get involved in.
Q. Tell me more about that.
A. One, I had already had contact with [Guglielmo], so, like I said, I wasn't
intimidated by him or threatened by anything that – that he was going to do towards
me. Second off, I figured Snyder could handle himself if something did happen in
there.

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Q. Okay.
A. There was no need for me to cause use of force on top of Snyder's.
Q. Okay. But your -- in your training if there's an officer that's at risk of harm, you
are trained to intervene and help that officer, right?
A. If there is harm going towards that officer, yes.
Q. So this wasn't a case where you felt there was -A. No.
Q. -- harm coming to Snyder?
A. No.
Q. He wasn't at risk of harm?
A. Myself, no, I didn't feel like he was in threat of harm.
Officers Cohn and Chmiel stood outside the cell door. Cohn testified, “I stood out there
and – I mean, if I saw other officers go towards, I would have gone towards, but no one did. You
know, no one did anything, so I waited.”
According to Sgt. Banks’ testimony, after the use of force, Sgt. Snyder told Sgt. Banks and
Sgt. Feehan that he “shoved Guglielmo back and that he had hit his head on the wall and then he
got on top of Guglielmo and struck him.” Officer Sears told Sgt. Banks that Sgt. “Snyder shoved
him back, and that’s when he hit his head and he got on top of him.”
F.

Post-Incident Treatment of Guglielmo’s Injuries

Immediately after the incident, Sgt. Snyder observed Guglielmo “standing in the window
banging” on the window of the cell door again. The left side of Guglielmo’s face was redder and
swelling more than it had been and he had a drop of blood coming from one of his nostrils. Sgt.
Snyder further testified, “I walked out of the—out of the transport staging and there was a nurse
standing there and I told him we had a use of force and he needed to see Mr. Guglielmo.” The
nurse was Gregg Mills, a NaphCare employee. Contrary to Sgt. Snyder’s recollection, Nurse Mills

17

testified that Sgt. Snyder did not tell him that there had been a use of force or that Guglielmo had
a head injury. Nurse Mills testified as follows about running into Sgt. Snyder after the incident:
Q. So it's my understanding the first you learned about Mr. Guglielmo is when you
were going to the platform to retrieve kites and you bumped into Sergeant Snyder.
A. Yes.
[...]
Q. And at that time Sergeant Snyder asked you for an ice pack to give to Mr.
Guglielmo; is that right?
A. Yes.
Q. Prior to that he didn’t radio for you to come down to Mr. Guglielmo’s cell,
right?
A. No.
Q. So then you retrieved an ice pack, right?
A. Yes.
Q. Is this like a chemical pack you break or what –
A. Yeah, it was just a chemical pack one.
Q. Okay. And was it your intention to just give that ice pack to Sergeant Snyder
and go back to work or –
A. Yes.
Q. Okay. So at that point, it wasn’t even your understanding that you were
supposed to do a medical check of Mr. Guglielmo?
A. Yes.
Q. So then when you returned and spoke with Sergeant Snyder and gave him the
ice pack, I think you testified you don’t remember how the decision was made for
you to actually go check on Mr. Guglielmo; is that right?
A. Yes.
Q. All right. You didn’t know there was a use of force; is that correct?
A. No.

18

Q. Sergeant Snyder didn’t tell you that he had struck Mr. Guglielmo, did he?
A. No.
Q. You didn't know he had been – he’d hit Mr. Guglielmo in the head; is that right?
A. No.
Q. That's right?
A. I never – I never knew he did anything from Sergeant Snyder until things that I
heard after the – after Mr. Guglielmo was out of the building.
Approximately 15 minutes after the incident, Sgt. Snyder returned to the cell with Nurse
Mills, who assessed Guglielmo. Nurse Mills asked for Guglielmo to be moved to the medical
holding cells to keep an eye on him. Nurse Mills testified, “There’s a lot more traffic in that area
with—and our medic and a lot of the corrections officers, more of them walking by there, so we
usually put people that we would want to be seen more often out there.” Video footage from the
Jail shows Guglielmo escorted away from Transport Staging at approximately 11:57 p.m. Nurse
Mills did not believe additional care was required at that time because he examined Guglielmo and
“determined by talking to him […] that he was alert, oriented and I could visually see things---you
know, that he had some injuries, but nothing at the time needed the (medical) bag.”
Nurse Mills, Officer Zink, Officer Sears, and Sgt. Snyder escorted Guglielmo to Male Hold
Cell 139 in the post-booking area. Sgt. Snyder, Officer Cohn, and Officer Zink testified that they
conducted periodic checks on Mr. Guglielmo while conducting their walk-through of that area of
the Jail.
Sgt. Snyder testified regarding one of his periodic checks:
Q. Did you observe him at any time while he was [in] the male holding area?
A. After my initial—or during my initial walk-through, I noticed his feet were
twitching.
Q. What do you mean by that?

19

A. You know, I could not tell if he was seizing or when you’re falling asleep maybe
you don’t have it, but kind of like your feet—your feet twitch and wake you up,
like the restless leg kind of thing, does that make sense? So his feet were—
Q. Moving?
A. –moving.
Q. Was he lying down?
A. Yes.
[...]
Q. And what did—how did you respond to that?
A. I asked for the first floor medic to step over and check him.
Q. Who was that?
A. Jack Saunders.
Q. What did he do?
A. He or we opened the door and he yelled out to him. He said hey or whatever,
called to him. I don’t think he knew his name.
Q. Did Mr. Guglielmo respond?
A. Yes, he did.
Q. What did he say?
A. Fuck you, leave me alone.
Q. What happened next?
A. We left him alone.
NaphCare Medic Jack Saunders similarly concluded that Guglielmo was not having a medical
emergency. He testified, “Due to the notes, it says that he responded with cussing me out. [...] So
usually people in a seizure aren’t able to pull that off.”
Within ten minutes of Medic Saunders’ evaluation, at 12:18 p.m., Officers Zink and Cohn
found Guglielmo unresponsive. Officer Cohn testified:

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Officer Zink and I did a walk-through and we found—we were going to—he was
like—he was propped in the corner. There was a half wall when looking inside the
cell and his head was in the corner and we wouldn’t observe him so we were going
to try to move him in a better position. And when we went in, he wasn’t— he wasn’t
responding. So I walked out of the cell. I could see the first floor medic’s in his
office and I walked over and told him to check him out because, you know, he
wasn’t responding to us. And then he went over and jail medical staff took over.
Medic Saunders returned to Guglielmo’s cell after being notified that Guglielmo was
unresponsive. Reviewing the notes from Guglielmo’s medical file, Medic Saunders testified,
“From this entry, it states I found him in the same position, on his left side, as stated earlier, and
Mr. Guglielmo was bleeding from his left nostril but he was breathing on his own. He was
unresponsive to verbal or painful stimuli.” Medic Saunders radioed for additional medical staff,
requesting the responses of Nurse Mills and Nurse Raymond Taylor.
Guglielmo was transported to Miami Valley Hospital. Upon arrival, he received an
emergency craniotomy to relieve pressure inside his skull. Despite the surgery, Guglielmo
remained comatose. Approximately a week later, surgeons opened up the left side of Guglielmo’s
face to repair his broken facial bones. They drilled 24 screws into his skull, attaching five titanium
plates. The orbital floor of his eye was fractured so severely it could not be surgically repaired.
Guglielmo remained comatose in the hospital for three weeks. He was transferred to an
intermediate care facility where he slowly regained consciousness and functional capacity. Even
after physical and occupational therapy, Guglielmo is left with “a right facial droop, a dense left
hemiplegia (paralysis on the left side of his body), an inability to ambulate, memory and
concentration difficulties, and significant personality changes that according to family include
being depressed, anxious and not in as good control of his temper and behavior as he had been
prior to the beating at the jail.” Guglielmo also suffers from Post Traumatic Amnesia and does
not remember anything from when he was booked into the jail until he woke up in the intermediate

21

care facility. “Here I am in a wheelchair,” he testified, “in a diaper, and I don’t have any idea how
I got here.”
Guglielmo retained Dr. Paul Gabriel, Chairman of Emergency Medicine at Grant Medical
Center in Columbus, Ohio, to testify as an expert in this case. (The Court denied Defendants’
Motion in Limine to exclude Dr. Gabriel’s testimony.) He opined that the amount of force required
to cause Guglielmo’s injuries is not consistent with Sgt. Snyder’s recollection of the incident:
The deposition by Mr. Snyder and the other corrections officers note four blows,
one to the abdomen and one to the right side of the face, which was not the injured
side, and two blows to the left side of the face and head that he stated were -occurred within seconds, maybe ten seconds. Could that have caused the degree of
injury with massive acute bleeding on the brain, mass effect, severe neurologic
deficit, massive facial fractures? No, that's not possible.
And, again, we got to understand how much damage there was. This is damage that
you see when somebody face plants at 90 miles an hour. This is damage that you
see getting repeatedly struck by a baseball bat, not once, multiple, multiple times.
This is the degree that you see when -- I see the construction workers fall out of the
third floor windows onto their face. This is massive. This is not subtle. This is a
guy who almost died because of a massive acute bleed on his brain. So, no, could
two blows do this? I don't see any way under the realm in heaven that could occur.
Guglielmo currently lives in a Florida nursing home. Dr. Patricia Brock, a certified life
care planner, determined that it will cost $5,286,858 to move Mr. Guglielmo closer to his family
and attend to his ongoing medical needs.
G.

Montgomery County Sheriff’s Office Investigation

On January 26, 2015, Montgomery County Sheriff’s Office Chief Deputy Rob Streck
assigned this incident for investigation to the Inspectional Services Unit (Internal Affairs).
Detective Bryan Cavender and Sergeant Dave Parin were tasked with determining whether Sgt.
Snyder used proper force and whether all other actions complied with Montgomery County
Sheriff’s Office and Montgomery County Jail policy. They reviewed the incident report completed

22

by the individuals involved and video footage from inside the Jail. They also interviewed Sgt.
Snyder, Sgt. Feehan, Nurse Mills, and Officers Sears, Cohn, and Ort.
Regarding Sgt. Snyder’s use of force, Detective Cavender made the following findings:
Sergeant Snyder initially responded to Cell 114 to try to calm Mr. Guglielmo and
prevent him from harming himself. When Mr. Guglielmo grabbed Sergeant Snyder,
he gave verbal commands to stop resisting and struck Mr. Guglielmo when he
continued to pull Sergeant Snyder off balance. Sergeant Snyder delivered strikes
until Mr. Guglielmo released his grasp of Sergeant Snyder. Sergeant Snyder’s use
of force was in direct response to Mr. Guglielmo’s actions.
Detective Cavender concluded that Sgt. Snyder’s application of force was consistent with the
Montgomery County Sheriff’s Office Policy 1.1.3 Use of Force, Section A (Force to Effect Lawful
Objectives).
Detective Cavender and Sergeant Parin also investigated whether Sgt. Snyder complied
with Montgomery County Sheriff’s Office Policy 1.1.3 Use of Force, Section H Ensuring Medical
Aid after Use of Weapons. They concluded:
Sergeant Snyder contacted Nurse Mills and requested he examine Mr. Guglielmo
immediately following the incident. Nurse Mills provided ice pack to Mr.
Guglielmo to control visible swelling to his left eye. Nurse Mills suggested Mr.
Guglielmo be moved to a male holding cell so he could be observed more easily.
Sergeant Snyder’s action of requesting Nurse Mills to provide an ice pack for the
swelling of Mr. Guglielmo’s eye immediately after the use of force and extra checks
on Mr. Guglielmo were consistent with Sheriff’s Office Policy and declared proper
conduct.
Since the investigation concluded that the officers’ conduct was proper, no discipline was issued.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be
rendered forthwith 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.” Fed. R. Civ. P. 56(c).

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Alternatively, summary judgment is denied “[i]f there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986)).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, that it believes demonstrate
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the nonmoving party who “must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). Once
the burden of production has shifted, the party opposing summary judgment cannot rest on its
pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the
[unverified] pleadings” and present some type of evidentiary material in support of its position.
Celotex Corp., 477 U.S. at 324.
In determining whether a genuine issue of material fact exists, a court must assume as true
the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party.
Anderson, 477 U.S. at 255. If the parties present conflicting evidence, a court may not decide
which evidence to believe by determining which parties’ affirmations are more credible. 10A
Wright & Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations must
be left to the fact-finder. Id. However, the mere existence of a scintilla of evidence in support of
the nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S. at 252.

24

“There must be evidence on which the jury could reasonably find for the plaintiff.” Id. The
inquiry, then, is whether reasonable jurors could find by a preponderance of the evidence that the
nonmoving party is entitled to a verdict. Id.
In ruling on a motion for summary judgment, “[a] district court is not ... obligated to wade
through and search the entire record for some specific facts that might support the nonmoving
party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied,
494 U.S. 1091 (1990). Thus, the court is entitled to rely upon the Rule 56 evidence specifically
called to its attention by the parties. The Rule 56 evidence includes the verified pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits
submitted. Fed. R. Civ. P. 56(c).
ANALYSIS
Guglielmo concedes that Officers Cooper and Cohn should be dismissed from this case.
Accordingly, the Court grants the Motion for Summary Judgment as to those two individual
Defendants. The Court addresses each of Defendants’ other arguments in turn below.
A.

Whether the Individual Defendants are entitled to Qualified Immunity

Defendants argue that Sgt. Snyder and Officers Sears, Zink, and Ort are entitled to qualified
immunity on Guglielmo’s claims. Qualified immunity shields public officials from civil liability
under 42 U.S.C. § 1983 unless their actions violate clearly established rights “of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is “an
immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985), and protects “all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). To defeat a defendant’s motion on qualified-immunity
grounds, a plaintiff must come forward with evidence from which a jury could find “(1) that the

25

official violated a statutory or constitutional right, and (2) that the right was clearly established at
the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal
quotation marks omitted). “[I]t is well-settled that qualified immunity must be assessed in the
context of each individual's specific conduct.” Stoudemire v. Mich. Dep’t. of Corrs., 705 F.3d
560, 570 (6th Cir. 2013).
“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of
the United States (2) 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) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Guglielmo brings claims against the individual Defendants under § 1983 for excessive use of force
in violation of the Fourteenth Amendment and for deliberate indifference to his serious medical
needs, also under the Fourteenth Amendment.
1.

Qualified Immunity – Excessive Force

Guglielmo’s excessive force claim is brought under the Fourteenth Amendment’s Due
Process Clause, which “protects a pretrial detainee from the use of excessive force that amounts
to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989); see also United States v.
Budd, 496 F.3d 517, 530 (6th Cir. 2007). The Sixth Circuit has stated:
[W]hen assessing pretrial detainees’ excessive force claims we must inquire into
whether the plaintiff shows “that the force purposely or knowingly used against
him was objectively unreasonable.” Kingsley v. Hendrickson, ––– U.S. ––––, 135
S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). The inquiry is highly fact-dependent,
and must take into account the “perspective of a reasonable officer on the scene,
including what the officer knew at the time, not with the 20/20 vision of hindsight.”
Id. It should also account for “the ‘legitimate interests that stem from [the
government's] need to manage the facility in which the individual is detained,’” id.,
and defer when appropriate to “‘policies and practices that in th[e] judgment’ of jail
officials ‘are needed to preserve internal order and discipline and to maintain
institutional security.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547, 99
S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

26

Coley v. Lucas Cnty., Ohio, 799 F.3d 530, 538 (6th Cir. 2015).
The following considerations are relevant to assessing whether a use of force is reasonable
or unreasonable: “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 2473. This
list is not exclusive. Coley, 799 F.3d at 538.
i.

Snyder’s use of force

The first inquiry in the qualified immunity analysis is whether Guglielmo can establish the
violation of a constitutional right. Genuine issues of material fact exist regarding the amount of
force used by Sgt. Snyder. If those issues are resolved in Guglielmo’s favor, then a reasonable
juror could find that Sgt. Snyder’s use of force was excessive in light of the threat that he
reasonably perceived from Guglielmo’s actions.
Applying the Kingsley factors, factual issues become apparent. The first factor is the
relationship between the need for the use of force and the amount of force used. Guglielmo was
alone when Sgt. Snyder went to address the disturbance. Guglielmo had been through the booking
process and was confined in a cell. It would be reasonable to infer that Guglielmo was unarmed
and did not have access to anything he could use as a weapon. Guglielmo was 57 years old, 5’10”,
and weighed 155 pounds. Although Sgt. Snyder might not have known Guglielmo’s age and
weight, his booking photos indicate that he presented as a slim, older man. As Officer Sears
testified, his physical appearance was not intimidating to a reasonable officer.
Five officers accompanied Sgt. Snyder to Guglielmo’s cell. Officers Ort and Zink were
inside the cell with Sgt. Snyder when he first struck Guglielmo. Sgt. Snyder was 41 years old,

27

5’10” and 215 pounds. Officer Ort was in his twenties, 5’9”, and 175 pounds. Officer Zink was
in his mid-thirties, 6’2”, 260 pounds, and played linebacker in college. A reasonable officer in the
company of Officers Ort and Zink would not have perceived Guglielmo as presenting a serious
threat of bodily harm.
Guglielmo grasped Sgt. Snyder’s forearms. It would be reasonable to believe that physical
force was necessary for Sgt. Snyder to extricate himself from Guglielmo’s grasp. Sgt. Snyder
testified, and other officers corroborate his testimony, that he struck Guglielmo four times over a
matter of four or five seconds after Guglielmo grasped him.

Guglielmo presented expert

testimony, however, that the injuries to his face were equivalent to what a physician would see
“when somebody face plants at 90 miles an hour,” is struck multiple times with a baseball bat, or
falls off of a third-floor window onto his face. From this expert testimony, a reasonable juror could
conclude that Sgt. Snyder and the other officers are not accurately reporting the amount of force
used against Guglielmo. A juror might conclude, for example, that Sgt. Snyder struck Guglielmo
four times—as he testified—but with an amount of force in each strike that was objectively
unreasonable. Alternatively, a juror might conclude that Sgt. Snyder and the other officers have
no credibility and that Sgt. Snyder severely beat Guglielmo—striking him more than four times—
as punishment for creating a disturbance. The video footage is inconclusive on the amount of time
force was used; as a result, the jury must assess whose testimony they find most credible in light
of all of the evidence presented.
The first Kingsley factor touches on the second factor—the extent of the plaintiff's injury.
In short, Guglielmo suffered devastating injuries.

He required an emergency craniotomy.

Surgeons drilled 24 screws into his skull and attached five titanium plates. The orbital floor of his
eye was fractured so severely it could not be surgically repaired. Guglielmo remained comatose

28

for three weeks. After physical and occupational therapy, Guglielmo is left with a right facial
droop, paralysis on the left side of his body, an inability to ambulate, memory and concentration
difficulties, and significant personality changes that negatively impact his quality of life.
The third factor is any effort made by Sgt. Snyder “to temper or to limit the amount of
force.” Defendants argue that Sgt. Snyder took many steps to limit the amount of force used,
including trying to establish a rapport with Guglielmo by talking to him. Guglielmo counters that
Sgt. Snyder did not need to enter the cell and escalated the likelihood of violence by calling
Guglielmo a homophobic slur. Guglielmo also refers to the testimony that Sgt. Snyder indicated
his intent to beat Guglielmo before heading to Guglielmo’s cell. Construing this evidence in
Guglielmo’s favor, a juror could reasonably find that Sgt. Snyder did not attempt to avoid a violent
encounter, but both invited and took advantage of the encounter to punish Guglielmo for creating
a disturbance.
The fourth factor is the severity of the security problem at issue. Defendants argue this
factor weighs in Sgt. Snyder’s favor because Guglielmo’s banging made it difficult for the officers
in the security control room to monitor security for the entire Jail. In addition, Defendants point
to the grasping of Sgt. Snyder’s forearms as a personal security issue that warranted a response.
Guglielmo argues that banging on a cell door is typical behavior, not a security issue. Due to
Guglielmo’s proximity to the security control room, Guglielmo’s contention that there was no
security issue is not reasonable. The magnitude of the security issue, however, is a jury question.
The mere existence of a security issue does not compel a finding that no constitutional violation
occurred. The use of force still must be objectively reasonable.
The fifth Kingsley factor has also been discussed. A reasonable juror could find that there
was no objective basis for an officer in Sgt. Snyder’s position to reasonably perceive a threat of

29

serious bodily injury or death. The officers who witnessed the use of force testified that they did
not feel the need to intervene because Sgt. Snyder had the situation under control and was not in
danger.
The last factor under Kingsley is whether the plaintiff was actively resisting. The evidence
is that Guglielmo stopped banging on the cell door when the officers arrived. Guglielmo did not
comply, however, when told to let go of Sgt. Snyder’s forearms. This physical resistance required
the use of force—the amount of force required is a factual issue.
In sum, considering all of the Kingsley factors together, a reasonable juror could find that
Sgt. Snyder’s use of force was unreasonable under the totality of the circumstances.
The second inquiry in the qualified immunity analysis is whether the constitutional right
was clearly established. Viewing the evidence in the light most favorable to Guglielmo, it was. If
the jury determines Sgt. Snyder used force equivalent to striking Guglielmo multiple times with a
baseball bat, then Sgt. Snyder is not entitled to qualified immunity. Defendants ask the Court to
take into consideration that “running a prison is an inordinately difficult undertaking, and that
safety and order at these institutions requires the expertise of correctional officials, who must have
substantial discretion to devise reasonable solutions to the problems they face.” Kingsley, 135
S.Ct. at 2474. Even acknowledging the discretion afforded correctional officials, a reasonable
person still would have known that causing multiple fractures to an unarmed pretrial detainee’s
face, including splintering the suborbital bone beneath his left eye beyond repair, and ultimately
rendering him comatose, is a violation of his constitutional rights.
In Malley, the Supreme Court stated that qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341. Here, there is
evidence from which the jury might infer that Sgt. Snyder knowingly violated the law. The jury

30

could determine, for example, that Sgt. Snyder was angry and intended to physically punish
Guglielmo for creating the disturbance or incapacitate him so that he could not repeat the
disturbance. Regardless of whether any punitive intent is inferred, which is not required to prove
that excessive force was used against a pretrial detainee, a reasonable person would have known
that such a severe beating violated Guglielmo’s clearly established constitutional right not to be
subjected to excessive force. Harlow, 457 U.S. at 818.
Defendants also argue that Sgt. Snyder’s use of a homophobic slur does not establish a
constitutional violation. The Court has not found that it could establish such a violation. Rather,
the use of the homophobic slur is evidence that a juror may rely upon in evaluating the nature of
the force used by Sgt. Snyder. The constitutional violation arises out of the use of force, not the
language he may or may not have used to provoke it.
Defendants also argue that the events leading up to the use of force should not be
considered when determining if it was objectively unreasonable. (Doc. 123 at 51, citing Dickerson
v. McClellan, 101 F.3d 1151 (6th Cir. 1996).) In this case, consideration of the events leading up
to Sgt. Snyder’s use of force is not required to find that factual issues preclude the application of
qualified immunity. A reasonable juror may find that Sgt. Snyder used objectively unreasonable
force without consideration of, for example, his alleged statements to other officers about his intent
to beat Guglielmo or his alleged use of a homophobic slur to provoke Guglielmo. The testimony
of Guglielmo’s medical expert alone is sufficient to sustain a finding that Sgt. Snyder used grossly
disproportionate force given the circumstances.
Nevertheless, Dickerson is distinguishable from this case. In Dickerson, the defendant
officers were accused of unlawfully entering a suspect’s residence and, once inside, using
excessive force when they shot the suspect multiple times. The Sixth Circuit determined that the

31

unlawful entry claim and excessive force claim were conceptually distinct and must be considered
separately. The Sixth Circuit recognized it would be improper to hold police officers accountable
for everything that occurs after a decision to intervene because it is their duty to intervene in
uncertain situations to protect the public. It will always be the case that, if the officer did not
intervene, no excessive force would have been used. Rather, the appropriate method of analysis
is to “carve up the incident into segments and judge each on its own terms to see if the officer was
reasonable at each stage.” Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143,
1150 (7th Cir. 1994)). The Sixth Circuit therefore rejected the argument that, if the defendants
had investigated further before entering the residence, no shooting would have occurred. Instead,
it considered only the moments immediately before the shooting to determine whether the use of
force was reasonable, judging from the perspective of a reasonable officer on the scene.
Here, Dickerson may support an argument that consideration of whether Sgt. Snyder used
excessive force cannot be premised on his decision to enter Guglielmo’s cell. In other words, it
would not be permissible for a juror to infer that Sgt. Snyder used excessive force only because he
could have avoided any use of force whatsoever had he stayed outside of Guglielmo’s cell. It is
permissible and consistent with Dickerson, however, for a juror to consider events leading up to
the use of force to the extent that they shed light on what happened in that moment. For example,
it would be permissible for a juror to consider Sgt. Snyder’s alleged statement that he intended to
beat Guglielmo’s “ass” because it may be used to assess Sgt. Snyder’s credibility regarding his
reasons for using force and the amount of force that he actually used.
Guglielmo argues that this case is on-point with Morabito v. Holmes, 628 F. App’x 353
(6th Cir. 2015), which the Sixth Circuit decided nineteen years after Dickerson. In Morabito, the
plaintiff alleged the defendants “entered [his] cell without a legitimate purpose—they simply were

32

frustrated with [his] outbursts and demands for medical treatment—and stood over him, taunting
him.” Id. at 354. Plaintiff further alleged he was “not attempting to hurt himself, and posing no
threat to anyone else.” Id. The defendants allegedly ”knocked [plaintiff’s] head aside, pinned him
to the ground, punched him, and then used a Taser against his neck for five seconds.” Id. The
defendants contended that the officer involved “was trying to calm [plaintiff] and prevent him from
hurting himself” and that the “reasonable use of force began in response to [plaintiff’s] attempt to
spit on [the officer] and escalated when [plaintiff] balled his fists and tried to tackle [the officer].”
Id. at 357–58. The video footage, despite three camera angles, was unclear.
Accepting the plaintiff’s version of the facts, as required on summary judgment, the Sixth
Circuit held that “provoking an altercation with [plaintiff] out of frustration with his repeated
verbal outbursts and demands for medical treatment, ultimately slapping, tasing, and punching
[plaintiff] while he was pinned under two officers, does not constitute an objectively reasonable
use of force.” Id. at 358. In addition, “the constitutional right to be free from such treatment was
clearly established long ago.” Id. As a result, the Sixth Circuit affirmed the district court’s
determination that material issues of fact precluded summary judgment for defendants.
Similar to the allegations in Morabito, Guglielmo alleges Defendants were frustrated with
him for banging on his cell door, went to his cell with the intention of provoking an altercation,
provoked an altercation, and then subjected him to excessive force.

Accepting Guglielmo’s

version of the facts, he has established the violation of a constitutional right that was “clearly
established long ago.” Id. Material issues of fact therefore preclude a determination that Sgt.
Snyder is entitled to qualified immunity on the excessive force claim.

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ii.

Officers Zink, Sears, and Ort’s Failure to Intervene

Guglielmo contends that Officers Zink, Sears, and Ort are liable under § 1983 for failure
to intervene to protect Guglielmo from the use of excessive force. As discussed, the first inquiry
in the qualified immunity analysis is to determine whether Guglielmo can establish the violation
of a constitutional right. “Generally speaking, a police officer who fails to act to prevent the use
of excessive force may be held liable when (1) the officer observed or had reason to know that
excessive force would be or was being used, and (2) the officer had both the opportunity and the
means to prevent the harm from occurring.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).
Defendants contend that Officers Zink, Sears, and Ort did not have any opportunity to
intervene because the incident happened so quickly. According to Defendants, the use of force
lasted only four or five seconds. On summary judgment, however, the Court must construe the
facts in Guglielmo’s favor. Guglielmo estimates that the use of force lasted up to forty-nine
seconds based on his analysis of videotape evidence and his experts’ opinions regarding the
amount of force used. This is not an unreasonable inference.
In Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir. 2015), the Sixth Circuit found
that two officers who witnessed a 21-second tasering, which was quickly followed by a five-second
tasering, had sufficient time to intervene and stop the use of force. The plaintiffs had already
shown that the tasering was excessive. One of the officers was present for the duration of the
tasering and the other officer was present for only a portion of the time the taser was used. Both
officers were attempting to handcuff the suspect when the taser was applied. Although the record
was not clear when the second officer arrived, he was present at least prior to the application of
the subsequent five-second tasering. Witnesses indicated that the suspect was “convulsing
uncontrollably and foaming at the mouth.” Id. at 328. The Sixth Circuit found there was sufficient

34

evidence about the suspect’s condition “to make it a jury question whether a reasonable officer in
[the witnessing officers’] position[s] would have seen that the force being applied [. . .] was
excessive and taken action to get [the tasering officer] to stop applying it.” Id.
If a juror were to find Guglielmo was beaten as severely as his medical expert opines, then
they could also find Officers Zink, Sears, and Ort knew that they were observing an excessive use
of force. Based on the Sixth Circuit’s holding in Goodwin, forty-nine seconds is sufficient time
for the officers to have recognized the use of excessive force and taken steps to stop it. In addition,
due to their proximity to Sgt. Snyder, they could have physically intervened or verbally
commanded him to leave Guglielmo alone. There is no evidence that any such actions were taken.
Guglielmo has therefore presented sufficient evidence from which a reasonable juror could find
that Officers Zink, Sears, and Ort violated a constitutional right by failing to act to prevent the use
of excessive force.
The second inquiry is whether the constitutional right was clearly established. Although
Defendants do not expressly direct any of their arguments to this inquiry, they suggest that the
officers could not have known the use of force was excessive because Guglielmo was not
restrained at the time it was applied. Guglielmo refers to several cases where officers were held
liable for failing to intervene when a restrained individual was subjected to excessive force. (Doc.
142 at 9, citing Morabito v. Holmes, 628 F. App’x 353 (6th Cir. 2015); Sallenger v. Oakes, 473
F.3d 731 (7th Cir. 2007); Coley v. Lucas Cnty, 799 F. 3d 530 (6th Cir. 2015); Sanchez v. Hialeah
Police Dep’t., 357 F. App’x 229 (11th Cir. 2009).) Because Guglielmo was not restrained,
Defendants contend it was not clearly established that Sgt. Snyder’s use of force was excessive.
The Court disagrees. Even though not restrained, Guglielmo was unarmed and confined within a
cell. A reasonable juror could find that he presented a minor, if any, threat to Sgt. Snyder’s safety.

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In addition, there is evidence to support a finding that an extraordinarily disproportionate amount
of force was applied.

It was clearly established that using that amount force would be

unconstitutional in similar circumstances, regardless of whether the inmate was restrained.
For the above reasons, material issues of fact preclude a determination that Officers Zink,
Sears, and Ort are entitled to qualified immunity on the claim that they failed to intervene to protect
Guglielmo from an excessive use of force.
2.

Qualified Immunity – Deliberate Indifference to Serious Medical Needs

“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,
539–40 (6th Cir. 2008) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)
(“[T]he due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment
protections available to a convicted prisoner.”)). Jail officials’ deliberate indifference violates a
pre-trial detainee’s rights “[w]hen the indifference is manifested by . . . prison guards in
intentionally denying or delaying access to medical care” for a serious medical need. Estelle v.
Gamble, 429 U.S. 97, 104–05 (1976).
A claim for deliberate indifference to serious medical needs requires a showing of objective
and subjective components. The objective component requires a plaintiff to show the existence of
a “sufficiently serious” medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The Sixth
Circuit directs that “where a plaintiff’s claims arise from an injury ‘so obvious that even a
layperson would easily recognize the necessity for a doctor’s attention,’ . . . it is sufficient to show
that he actually experienced the need for medical treatment, and that the need was not addressed

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within a reasonable time frame.” Blackmore v. Kalamazoo County, 390 F.3d 890, 899–900 (6th
Cir. 2004) (citation omitted). In contrast, the subjective component requires a plaintiff to “allege
facts which, if true, would show that the official being sued subjectively perceived facts from
which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he
then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing
Farmer, 511 U.S. at 837). Although the latter, subjective standard “is meant to prevent the
constitutionalization of medical malpractice claims,” a plaintiff need not show that the officer
acted with the specific intent to cause harm. Id. Accordingly, the Sixth Circuit has held that
“‘deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of
recklessly disregarding that risk.’” Id. (quoting Farmer, 511 U.S. at 836). Because government
officials generally do not concede this subjective component, “it [is] permissible for reviewing
courts to infer from circumstantial evidence that a prison official had the requisite knowledge.”
Id.
Correctional officers may “not escape liability if the evidence showed that [they] merely
refused to verify underlying facts that [they] strongly suspected to be true, or declined to confirm
inferences of risk that [they] strongly suspected to exist.” Farmer, 511 U.S. at 843 n. 8. See also
Estate of Carter v. City of Detroit, 408 F.3d 305, 313 (6th Cir. 2005) (“In most cases in which the
defendant is alleged to have failed to provide treatment, there is no testimony about what inferences
the defendant in fact drew. Nonetheless, in those cases, a genuine issue of material fact as to
deliberate indifference can be based on a strong showing on the objective component.”).
The same two-step analysis applies to the assertion of qualified immunity as to this claim.
Under the first step, Defendants argue that Guglielmo cannot establish the violation of a
constitutional right because “[t]he record makes clear that the Defendants, as a group, attempted

37

to provide the Plaintiff with medical care and alerted medical staff on three separate occasions
within a one-hour span of Mr. Guglielmo’s need for medical attention.” (Doc. 123 at 47.) Contrary
to this assertion, however, the record contains evidence from which a reasonable juror could find
in Guglielmo’s favor.
In his Memorandum in Opposition, Guglielmo argues that only Sgt. Snyder was
deliberately indifferent to his serious medical needs, not any of the other individual Defendants.
This is important because in a § 1983 action “[e]ach defendant’s liability must be assessed
individually based on his own actions.” Pollard v. City of Columbus, Ohio, 780 F.3d 395, 402
(6th Cir. 2015) (internal quotes omitted) (quoting Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir.
2010)). To the extent that Guglielmo originally sought to bring a deliberate indifference claim
against anyone other than Sgt. Snyder, those claims are dismissed.
As to the objective component of the claim against Sgt. Snyder, Defendants cannot
reasonably dispute that Guglielmo had a “sufficiently serious” medical need. As to the claim’s
subjective component, a reasonable juror could find that Sgt. Snyder (1) perceived facts supporting
an inference of the existence of a substantial risk to Guglielmo, (2) did in fact draw that inference,
and (3) disregarded that substantial risk.
Guglielmo’s medical expert testified that Sgt. Snyder is the one who caused the multiple
fractures to Guglielmo’s face. Again, if the jury finds that the use of force was tantamount to being
beaten with a baseball bat, then Sgt. Snyder caused (and therefore perceived) injuries posing a
substantial risk to Guglielmo’s life. There is also evidence that Sgt. Snyder disregarded that risk.
Sgt. Snyder’s alleged failure to notify medical personnel of the severity of the force used against
Guglielmo—supported, for example, by Nurse Mills’ testimony—supports a finding that, at the
very least, he delayed the provision of immediate emergency medical treatment to Guglielmo.

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See Border v. Trumbull Cnty. Bd. of Comm’rs, 414 F. App’x 831, 838-39 (6th Cir. 2011) (officer
not relieved of liability on deliberate indifference claim where he was aware of plaintiff’s serious
medical need, but only requested that a medical staff member treat him for a minor cut on his
head); Blackmore, 390 F.3d at 899 (“When prison officials are aware of a prisoner’s obvious and
serious need for medical treatment and delay medical treatment of that condition for non-medical
reasons, their conduct in causing the delay creates the constitutional infirmity.”)
Defendants also argue Sgt. Snyder is entitled to qualified immunity because the contours
of the violated right were not sufficiently clear that a reasonable officer would have understood
that what he was doing violated that right. This inquiry also turns on the severity of the alleged
use of force. If the jury were to find that Guglielmo was beaten as severely as his experts opine,
then Sgt. Snyder was on notice that Guglielmo sustained serious injuries and required immediate
medical care—not just the ice pack that Sgt. Snyder requested for Guglielmo. Under those
circumstances, the contours of the right to medical treatment were clearly established. The jury
may not ultimately find in Guglielmo’s favor on the severity of the force used, but at this time
material issues of fact preclude a determination that Sgt. Snyder is entitled to qualified immunity
on this claim.
B.

Sufficiency of Claims for Excessive Force and Deliberate Indifference to
Serious Medical Needs

Defendants separately argue that Guglielmo cannot establish his claims for excessive use
of force and deliberate indifference to his serious medical needs as a matter of law. As discussed
above with respect to qualified immunity, Guglielmo has come forward with sufficient evidence
to support both of these claims.

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C.

Guglielmo’s Claims Against Individual Defendants in their Official Capacities

Defendants argue that the claims against the individual Defendants in their official
capacities should be dismissed because they are, in all respects other than name, claims against
Montgomery County. (Doc. 123 at 50, citing Kentucky v. Graham, 473 U.S. 159, 166 (1985).)
Since Montgomery County is a Defendant, they argue, the claims against Sheriff Plummer in his
official capacity and all of the other officers who are Defendants are duplicative.
Guglielmo does not oppose the dismissal of his claims against the individual Defendants
in their official capacities. Accordingly, they are dismissed.
D.

Guglielmo’s Claim Against Sheriff Plummer in his Individual Capacity

Defendants argue that the claim against Sheriff Plummer in his individual capacity should
be dismissed because he was not involved in any manner with the force used against Guglielmo.
As the Sixth Circuit explained:
“[S]imple negligence is insufficient to support liability of [supervisory officials] for
inadequate training, supervision, and control of individual officers.” A supervisory
official may not be held liable under § 1983 for the misconduct of those the official
supervises unless the plaintiff demonstrates that the supervisor encouraged the
specific incident of misconduct or in some other way directly participated in it. At
a minimum plaintiff must show that the official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers. Supervisory liability under § 1983 cannot be based upon a mere failure to
act but must be based upon active unconstitutional behavior.
Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002) (internal citations omitted).
Guglielmo’s Memorandum in Opposition does not address the claim against Sheriff
Plummer in his individual capacity. As a result, he has waived that claim and it is dismissed. See
Notredan, LLC v. Old Republic Exch. Facilitator Co., 531 F. App’x 567, 569 (6th Cir. 2013)
(failure to respond to argument raised in motion constitutes a waiver of that claim).

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E.

Guglielmo’s Claim Against Montgomery County

Municipalities cannot be held liable in a § 1983 action under a theory of respondeat
superior. They may be held responsible “only for injuries caused by those acts that may fairly be
said to represent official policy or by their policies or customs.” North v. Cuyahoga Cnty., 754 F.
App’x 380, 386 (6th Cir. 2018) (citing Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 495 (6th
Cir. 2008)). In addition to demonstrating an underlying constitutional violation, “[a] plaintiff
bringing a § 1983 claim against a municipality must ... identify the policy or custom that caused
her injury.” Ford, 535 F.3d at 495. In the absence of a formally approved policy, a “custom” can
give rise to municipal liability when the “practice is so widespread as to have the force of law.”
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997).
In addition to identifying “conduct properly attributable to the municipality,” id., a plaintiff
must show that the municipality was a “moving force” behind the alleged violation, Monell v.
Dep’t of Social Services, 436 U.S. 658, 694 (1978). In other words, “a plaintiff must identify the
policy, connect the policy to the [municipality] itself and show that the particular injury was
incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358,
364 (6th Cir. 1993) (citation and internal quotation marks omitted); see also Alkire v. Irving, 330
F.3d 802, 815 (6th Cir. 2003).
Municipal liability also may be premised on the municipality’s failure to adequately train
or supervise its employees. Such a failure can give rise to liability when the training and
supervision “were inadequate for the tasks the [employees] were required to perform, the
inadequacy resulted from [the municipality’s] deliberate indifference, and the inadequacy actually
caused, or is closely related to, [the plaintiff’s] injury.” Shadrick v. Hopkins Cnty., 805 F.3d 724,
738 (6th Cir. 2015).

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Defendants initially argued that Guglielmo cannot establish municipal liability based upon
the theory that Montgomery County failed to adequately train or supervise its employees. In
response, however, Guglielmo asserted that Montgomery County is liable because it “has an
unconstitutional policy of allowing its corrections officers to use excessive force as seen by its
pattern and practice of failing to meaningfully investigate uses of force and ratifying all (but one)
uses of force by Montgomery County jail officers.” (Doc. 134 at 47.) In reply, Defendants argue
they are nevertheless entitled to summary judgment on Guglielmo’s claim under both the theory
that Montgomery County ratified the use of excessive force and that it has an unconstitutional
custom or policy of permitting excessive force.
1.

Guglielmo’s Ratification Theory of Liability

Guglielmo relies on Wright v. City of Canton, 138 F. Supp. 2d 955 (N.D. Ohio 2001) for
the proposition that a municipality may be held liable under § 1983 when its final decision maker
reviews and approves an officer’s use of force or when a policymaker fails to meaningfully
investigate the alleged unconstitutional conduct. Defendants refer to another case, however,
holding that Wright was wrongly decided to the extent it premised liability exclusively on
ratification without any showing that the ratification was also a “moving force” behind the use of
force. See Greenlee v. Miami Twp., Ohio, No. 3:14-CV-173, 2015 U.S. Dist. LEXIS 18145, at
*21-23 (S.D. Ohio Feb. 12, 2015), aff’d 2015 U.S. App. LEXIS 23432 (6th Cir. Sept. 23, 2015).
Although Greenlee is not binding precedent, its analysis is persuasive. In that case, the
plaintiffs brought a § 1983 action seeking to hold a township liable for the misconduct of one of
its police officers. The plaintiffs alleged the township’s board of trustees “impliedly approved of
the wrongdoing by failing to conduct a meaningful investigation” and failed to take any action to
remedy the wrongdoing. Greenlee, 2015 U.S. Dist. LEXIS 18145, at *20. “Standing alone,”

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however, those allegations were not sufficient to establish municipal liability. Id. The court
explained that, even if ratification was evidence of a policy of permitting the wrongdoing, plaintiffs
also must show that the policy caused the wrongdoing. And, “[i]n most cases, once an individual’s
rights have been violated, a subsequent failure to conduct a meaningful investigation cannot
logically be the ‘moving force’ behind the alleged constitutional deprivation.” Id. (internal quotes
omitted) (quoting Daniels v. City of Columbus, No. C2–00–562, 2002 WL 484622, at *5 (S.D.
Ohio Feb. 20, 2002)).
The Greenlee court acknowledged one “exception,” which nonetheless still satisfied
Monell’s causation requirement:
In Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985), and Leach v. Shelby
County Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989), the Sixth Circuit found that a
failure to investigate incidents of alleged police abuse, and to discipline the officers
involved, demonstrated deliberate indifference to the constitutional rights of the
victims, and subjected the municipality to liability. In each case, however, there
was a documented pattern of abuse prior to the incident giving rise to the lawsuit.
When such documentation exists, failure to investigate a complaint or to discipline
the wrongdoer may constitute evidence that the municipality has a policy or custom
of tolerating unconstitutional behavior. See Alexander v. Beale St. Blues Co., Inc.,
108 F. Supp. 2d 934, 949 (W.D.Tenn. 1999) (holding that “[a]lthough ratification
might tend to establish the existence of a policy of acquiescence that in itself was a
‘moving force,’ mere ratification of the conduct at issue by itself cannot legally
suffice as a ‘moving force’”).
However, a “single, isolated incident” of a failure to conduct a meaningful
investigation or to discipline the officers involved cannot give rise to municipal
liability. See Maynard v. Jackson Cnty., 706 F. Supp. 2d 817, 827–28 (S.D. Ohio
2010) (holding that sheriff's failure to discipline an officer “on this single occasion”
could not be deemed the “moving force” behind the constitutional violation). See
also Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 701 n. 5
(6th Cir. 2006) (“We have not found any legal support for the proposition that, in
the absence of deliberate indifference before a constitutional violation, a
municipality may be liable for simply failing to investigate or punish a wrongdoer
after the violation.”) (emphasis added).
Greenlee, 2015 U.S. Dist. LEXIS 18145, at *21-22. The court further held that to the extent that
Wright v. City of Canton failed to recognize that a documented pattern of abuse prior to the incident

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was required to impose liability in both Marchese and Leach, it was wrongly decided. Id. at *21
n.5.
Guglielmo cites a variety of evidence in support of his argument that Montgomery County
failed to conduct a meaningful investigation into Sgt. Snyder’s use of force. Guglielmo does not,
however, cite evidence showing a causal link between that failure and the use of force against him.
He has not summoned sufficient evidence to support a claim based solely on Montgomery
County’s alleged ratification of Sgt. Snyder’s conduct.
2.

Evidence of a Custom or Policy Permitting Excessive Force

Guglielmo also seeks to hold Montgomery County liable by showing that it has a custom
or unwritten policy of permitting correctional officers to use excessive force at the Jail. To prevail
on such a theory, a plaintiff must show:
(1) the existence of a clear and persistent pattern of illegal activity;
(2) notice or constructive notice on the part of the defendant;
(3) the defendant’s tacit approval of the unconstitutional conduct, such that their
deliberate indifference in their failure to act can be said to amount to an official
policy of inaction; and
(4) that the defendant’s custom was the “moving force” or direct causal link in the
constitutional deprivation.
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (internal quotes and brackets
removed) (quoting Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 507 (6th Cir. 1996)).
i.

Existence of Clear and Persistent Pattern

Guglielmo relies on the testimony of Michael Berg, a corrections expert, to show that there
is a clear and persistent pattern of excessive force at the Jail. Berg reviewed 120 uses of force by
the named Defendants to determine, in each case, whether the force used was excessive. His
process involved reviewing the officer’s description of a particular event – including the inmates’

44

actions and the officer’s response. Generally, Berg found that incidents involved an excessive use
of force where “the individual was under control” but the officer continued to use “fist strikes,
knee strikes, tasings, OC spray, restraint devices such as a restraint chair, and flashlight used as an
attack weapon.”
Berg opined that the overall number of use-of-force incidents by the defendant officers was
“extremely high” and inconsistent with the principle that the use of force should be a “last resort.”
He determined that 71 of the 120 incidents he reviewed involved excessive force. In one-and-ahalf years at the Jail, Sgt. Snyder used force thirty-one times. Of those incidents, Berg determined
the use of force was excessive in 29 cases, or 93.5% of the incidents. No officer was disciplined
as a consequence of any of the 120 use-of-force incidents that Berg reviewed.
Defendants’ sole counter-argument is that Berg’s testimony is inadmissible under Fed. R.
Evid. 702. In a prior Order, the Court denied Defendants’ Motion in Limine to exclude Berg’s
testimony on the same ground. Based on Berg’s testimony, Guglielmo has presented evidence
from which a reasonable juror could find a clear and persistent pattern of using excessive force at
the Jail.
ii.

Notice or Constructive Notice

As to this element, Guglielmo asserts that each of the 71 incidents allegedly involving
excessive force was reported to the Chief Deputy, Jail Commander, and the Training Center. In
addition, Sheriff Plummer testified that he shares his responsibility to make sure the use-of-force
policies are being followed in the jail with a major (Jail Commander) and the chief deputy.
Guglielmo argues that this evidence is sufficient to show that Montgomery County was on notice
of the alleged pattern of excessive force. The Court agrees and, in any event, Defendants do not
dispute this element.

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iii.

Tacit Approval of Unconstitutional Conduct

Guglielmo argues that a reasonable juror may infer Montgomery County’s tacit approval
of the use of excessive force from the fact that, in Sheriff Plummer’s ten years of service, only one
officer was disciplined for using excessive force. Moreover, Guglielmo argues the one incident
where an officer was disciplined is irrelevant because it occurred after the incident involving
Guglielmo. Defendants do not specifically challenge the sufficiency of the evidence to establish
this element. The Court notes that the parties dispute the adequacy of the investigations into uses
of force at the Jail, which could be construed as relevant to whether Montgomery County tacitly
approved the use of excessive force. The parties’ arguments as to this issue, however, were
directed toward Guglielmo’s ratification theory of liability. Regardless, there are material factual
issues concerning the adequacy of the investigations that must be resolved by the trier of fact.
iv.

Moving Force or Direct Causal Link

Guglielmo claims that he was subjected to excessive force because Montgomery County
failed to discipline Sgt. Snyder for using excessive force on other inmates in four nearly identical
situations that occurred in the fourteen months before Guglielmo was booked into the Jail. In each
of the four incidents, Sgt. Snyder ordered the inmate to stop banging on the cell door, entered the
cell, and ultimately pepper sprayed the inmate.

(Docs. 134-21, 134-22, 134-23, 134-24.)

Guglielmo contends that, in each instance, the use of force was unnecessary because the inmate
was compliant—just as Guglielmo complied with the order to stop banging on the door before he
was struck. In the incident reports, Sgt. Snyder states the use of force was required because the
inmates were not complying with commands and/or posed a safety risk. Sgt. Snyder also testified
that it was his “standard operating procedure” to enter a cell “to control inmates in the jail that

46

might hurt themselves or the property.” Each incident was reported and approved by the Sheriff’s
office as within policy.
These incidents are similar enough for Guglielmo to argue, based on Berg’s testimony, that
Sgt. Snyder had an established pattern of entering inmates’ cells for creating too much noise and
then using excessive force against them. If the jury agrees, then it could also find that Guglielmo
would not have been subjected to excessive force if Sheriff Plummer had disciplined Sgt. Snyder
for the use of excessive force in these prior incidents. Cf. Claiborne Cnty., Tenn., 103 F.3d at 508
(plaintiff could not establish policy, custom or practice where there was no evidence that the
defendants school board failed to act regarding other teachers in similar circumstances). By
establishing this causal link, Guglielmo has shown that he can meet his burden on this element at
trial. See Mann v. Helmig, 289 F. App’x 845, 850 (6th Cir. 2008) (“[P]roof merely that such a
policy or custom was ‘likely’ to cause a particular violation is not sufficient; there must be proven
at least an ‘affirmative link’ between policy or custom and violation; in tort principle terms, the
causal connection must be ‘proximate,’ not merely ‘but-for’ causation-in-fact.”).
Guglielmo has come forward with evidence from which a reasonable juror could find in
his favor on his § 1983 claim against Montgomery County based on a custom or policy of
permitting the use of excessive force. The motion for summary judgment as to this claim is
therefore denied.
CONCLUSION
For the reasons above, Defendants’ Motion for Summary Judgment (Doc. 123) is
GRANTED IN PART and DENIED IN PART. Specifically, the Court orders as follows:
1. All claims against Officers Cooper and Cohn are
DISMISSED;

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2. Sgt. Snyder and Officers Zink, Sears and Ort are DENIED
summary judgment on the basis of qualified immunity due to
the existence of genuine issues of material fact;
3. Except with respect to such a claim against Sgt. Snyder, 42
U.S.C. § 1983 claims of deliberate indifference to serious
medical needs brought against the individual defendants are
DISMISSED;
4. The claims against Sheriff Plummer, Sgt. Snyder, and Officers
Zink, Sears, and Ort in their official capacities are
DISMISSED;
5. The claims against Sheriff Plummer in his individual capacity
are DISMISSED;
6. The claim against Montgomery County based exclusively on
its alleged ratification of the use of force against Guglielmo is
DISMISSED; and
7. All other claims shall proceed to trial.
DONE and ORDERED in Dayton, Ohio, this Tuesday, May 28, 2019.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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