Wade v. Eversole et al
Filing
77
ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT 61 , AND GRANTING MOTION FOR LEAVE TO FILE AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 75 . SUMMARY JUDGMENT IS AWARDED TO DEFENDANTJOSHUA LIGHTNER, SCOTT LAND IS AND SHERIFF PLUMMER IN THEIR PERSONAL CAPACITY AND TO ALL INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITY. SUMMARYJUDGMENT IS DENIED TO CHARLES EVERSOLE AND TO THE COUNTY, EXCEPT THAT SUMMARY JUDGMENT IS AWARDED ON THE CLAIMS OF CONSPIRACY AND SPOLIATION. Signed by Judge Thomas M. Rose on 12-4-2018. (de)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Charles Wade,
Plaintiff,
v.
Case No.: 3:17-cv-051
Judge Thomas M. Rose
Montgomery County, Ohio et al.,
Defendants.
______________________________________________________________________________
ENTRY AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR SUMMARY JUDGMENT, ECF 61, AND
GRANTING MOTION FOR LEAVE TO FILE AFFIDAVIT IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT ECF 75.
SUMMARY JUDGMENT IS AWARDED TO DEFENDANT
JOSHUA LIGHTNER, SCOTT LANDIS AND SHERIFF PLUMMER
IN THEIR PERSONAL CAPACITY AND TO ALL INDIVIDUAL
DEFENDANTS IN THEIR OFFICIAL CAPACITY. SUMMARY
JUDGMENT IS DENIED TO CHARLES EVERSOLE AND TO THE
COUNTY, EXCEPT THAT SUMMARY JUDGMENT IS AWARDED
ON THE CLAIMS OF CONSPIRACY AND SPOLIATION
______________________________________________________________________________
Pending before the Court is Defendants’ Motion for Summary Judgment, ECF 61. 1
Plaintiff Charles Wade is suing multiple defendants over his treatment while being transferred
from Ohio Highway Patrol custody to that of the Montgomery County Jail. Defendants will be
awarded summary judgment for claims stemming from officers grabbing and manipulating Wade’s
wrists while securing his wrists to a restraint chair he was largely strapped into, while claims
1 Also pending is Defendants’ Motion for Leave to File Affidavit in
Support of Motion for Summary Judgment. ECF 75. This motion is
granted.
stemming from the decision to pepper spray him while so restrained, and Monell liability stemming
from this decision, will be allowed to go forward.
Background
On October 17, 2016, Plaintiff Charles Wade was intoxicated and arrested for OVI by the
Ohio State Highway Patrol. (Deposition of Charles Wade, ECF 57; 29, 33, 36, 64:16) The
Highway Patrol Troopers handcuffed Wade, placed him in a cruiser, and brought him to the
Montgomery County Jail. (Depo. Wade 37) On the way to the Jail, the trooper contacted the
Jail and advised them to be prepared for an uncooperative inmate. (Depo. Wade, p. 36-37, 52).
Dispatch forwarded this information to Defendant John Eversole, who was working that night as
the booking sergeant on the first floor of the jail. (Depo. Eversole 52:22, 137:24.) Eversole
grabbed a hand-held video camera, which per policy, was required to record any use of force
and/or anticipated use of force. (Depo. Eversole 139:8; Exhibit 10.)
Eversole recorded the encounter with Wade on the Jail’s hand-held video camera. (Depo.
Eversole 141). The incident was also captured on the Jail’s closed-circuit security camera
system. These two sets of videos have been compiled through editing into a fluid video.
Eversole gathered his “troops” to meet Wade in the jail’s sally port where Wade was
handcuffed in the back of the patrol vehicle. (Depo. Eversole 136:24, 139:8. ECF 931, 934)
Four of the Jail staff, Eversole, Defendant Joshua Lighter, Corrections Officer Kordik and
Corrections Officer Cornley, participated in removing Wade from the back seat of the trooper’s
cruiser. (Deposition of Sgt. John Eversole, ECF 58, p. 141:25, Depo. Cornley, ECF 54, at 56:11).
Wade asked Eversole if they were going to “chair” him. (Depo. Wade 52:5, 52:19; Eversole
141:25.) Wade was brought into the receiving room from the sally port and cooperated in being
2
patted down. (Depo. Wade 55:4; Eversole 141:11.) During this pat down in the inner receiving
room, Wade struck his head on a blue pad on the wall. (Depo. Wade 55:22, 58:10. Eversole
146:6.) Eversole admitted that Wade striking his head was self-harming at most, but not a
threat to jail staff. (Depo. Eversole 146:6.) Eversole ordered Wade to the ground on a pad and
ordered Lightner to place his knee on his back. (Depo. Wade 59:22)
Eversole decided to place Wade in the restraint chair. (Depo. Eversole, 147:15).
Eversole admitted that there were less restrictive means for dealing with an intoxicated inmate
like Wade, like placing him in a cell to simply sober up. (Depo. Eversole 76:7.) Regardless,
Wade was moved into the booking area, just outside the inner receiving room and, while still
handcuffed, was placed in the restraint chair. (Depo. Wade 61:8; Eversole 149:3.)
The restraint chair utilized in the Jail has seven straps that keep an inmate in the chair and
unable to move. Both legs are strapped to the chair at the inmate’s ankles, a lap belt goes
across the waist, both arms are secured to the chair at the wrists and both shoulders are strapped
back into the chair. (Depo. Eversole 113:2). Upon sitting down, Wade told Sgt. Eversole that
having his hands cuffed behind his back while seated in the restraint chair was painful and
Eversole responded that the cuffs would be removed shortly, and that his arms would be strapped
to the chair. (See Video identified as Exhibit 29A to Depo. Eversole, at 3:23-3:35). Wade
responded, “Well, we’ll see about that, won’t we sir.”
There were four corrections officers in addition to Eversole surrounding Wade and
strapping him into the restraint chair. (Depo. Eversole 152:23.) Both of Wade’s ankles were
strapped to the chair and the lap belt was secured, while he still remained handcuffed. (Depo.
Wade 63:8; Eversole 149:3.) Eversole admits that it would have been very difficult for Wade
3
to stand up at that point, given the two leg restraints and lap belt. (Depo. Eversole 156:2.)
Defendant Joshua Lightner then instructed Wade to lean forward and corrections officer Jameson
Kordik, whom Eversole knew was a college wrestler, took control of Wade’s head and pushed it
into his lap. (Depo. Eversole 178:7; (Ex. 29A, at 3:40). Hence, given the number of corrections
staff, Wade being partially restrained in the chair, still handcuffed, there was nothing he could
have effectively done to himself or corrections staff at that point.
With Wade’s head in his lap, Lightner started to manipulate Wade’s wrist causing him
pain, under the auspices of taking off his handcuffs to secure his wrists onto the chair. (Depo.
Wade 61:22, 64:29, 65:25, 66:13. Eversole 157:17.) Wade reacted by flailing in pain, and
shouting “What the fuck are you fuckers doing to my hands?” (Depo. Wade 65:13 (Ex. 29A, at
3:52)). Sgt. Eversole immediately handed the camera to C.O. Cornley standing nearby, took his
pepper spray from his belt, and sprayed pepper spray directly into Wade’s face from about
twelve inches away. (Depo. Eversole 157:17 (Ex. 29A, at 3:57).) Eversole sprayed Wade in the
eyes, stating “So it’s called a – it’s kind of a target of opportunity. I was just trying to strike his
facial area, sir, to gain compliance.” (Depo. Eversole 160:6.)
The video shows Wade beginning to struggle at three minutes and fifty-two seconds into
the video. Eversole began pepper spraying Wade at three minutes and fifty-seven seconds into
the video. Eversole admitted during his deposition that at the time of the first spraying, he
knew Wade was handcuffed and that he was partially restrained in the restraint chair with the lap
belt and both leg restraints. (Depo. Eversole 159:11, 176:4.) Immediately after being sprayed,
Wade stopped struggling, and leaned all the way forward. He began coughing, and when the
handcuff on his left arm was removed, he brought his left hand to his mouth to cover his cough.
4
(Depo. Eversole 160:11. (Ex. 29A, at 4:08)). Eversole then again sprayed Wade in the face
with the pepper spray a second time, at four minutes and nine seconds into the video. (Ex. 29A,
at 4:09); Depo. Eversole, p. 161). During the second pepper spraying, Eversole acknowledged
that Wade’s ankles were still secured to the chair, the lap belt was still on, Lightner still had
control of his left hand and another corrections officer still had his right hand in the handcuffs
behind his back. (Depo. Eversole 162:11, 176:15.)
After the second pepper spraying, Eversole put his forearm across Wade’s neck pinning
him to the back of the chair. (Depo. Eversole 162:11.) Wade repeatedly stated, “I can’t breathe.
I can’t breathe.” (Ex. 29A, at 4:22). During this time C.O. Ben Walters grabbed Wade’s jaw
from behind lifting up, applying pressure on his hypoglossal nerve. (Exhibit 2; Depo. Eversole
163:8.) The other corrections officers then secured the remaining arm restraint and both
shoulder straps. Id.; (Ex. 29A, at 4:22-5:31). Wade was then wheeled into an isolation cell.
(Depo. Eversole 164:14.)
As Wade was being wheeled away, another inmate began banging on his cell door in
protest about the treatment that he just witnessed. In response, Eversole can be heard on the
video yelling a threat back to the inmate: “You’re next…..you keep it up…..you are next!”.
Eversole admitted making this threat and claimed it was a verbal warning to another inmate.
(Depo. Eversole 215:22, 219:14.)
Defendants Eversole, Lightner and the other corrections officers involved with Wade all
testified that they were not in fear of physical harm and that Wade never tried to harm them (did
not spit, bite, kick, punch or any other kind of overt act).(Depo. Eversole 184:1.) See also Exhibit
1 (narrative reports) and Exhibit 3 (use of force report).
5
Approximately a minute after they pepper sprayed Wade, one of the officers asked if a
medic had been summonsed. (Ex. 29A, at 6:24). A few minutes later, a nurse arrived to
“decontaminate” Wade. (Restraint Watch Report, identified as Exhibit 24 to the Deposition of
Nicole Hochwalt, ECF 60) This consisted of pouring a few ounces of water over his eyes.
The nurse spent three seconds on the process. After the decontamination, Wade continued to
writhe in pain. The nurse returned at 5:45a.m., after Wade had been in the restraint chair for an
hour, and in the process of checking the restraints, rinsed Wade’s eyes again. (Depo. Hochwalt,
p. 57)
Wade was eventually released from the restraint chair over two hours and thirty-five
minutes later. (Depo. Eversole, p. 167:9). Per policy, an inmate should not be kept in the
restraint chair for more than two hours. (Depo. Eversole 167:9; Exhibit 11.) After being
chaired, Eversole took two pictures of Wade’s injuries. (Depo. Wade 85:6, 87:14.) Eversole
admitted that Wade had no injuries when he came to the jail but had an injury to his eye after this
incident. (Depo. Eversole 181:10-182:18; Exhibit 4(a-d)). Wade describes the injury to his eye
from the pepper spraying as a chemical burn and that his eye now twitches involuntarily. (Depo.
Wade 88:15, 92:10.) Jail medical staff subsequently treated Plaintiff’s eye injury with a cream
and antibiotics. (Depo. Wade 85:5.) Wade also sustained an injury to his wrist from Lightner’s
conduct. (Depo. Wade 92:1.)
Two days later, on October 19, 2016, Wade attempted to file a grievance or complaint
alleging excessive use of force. (Depo. Wade 84:16, 90:3.) Sgt. Mark Shively spoke with Wade
about filing a grievance. He explained to Wade that he had reviewed the video from the pepper
spraying and that he could not file a grievance or complaint against Eversole as reflected in his
6
written report. (Depo. Wade 84:24; Exhibit 23, Eversole 205:16.) This is despite the policy and
practice that a sergeant is not supposed to review another sergeant’s use of force, as it requires
review by someone higher up in the chain of command. (Depo. Plummer 24:22, 28:19; Eversole
201:13.) The incident involving Wade was never investigated for excessive use of force at the
Montgomery County Sheriff’s office. (Depo. Eversole 207:3; Depo. Plummer 35:11, 42:17,
51:10.)
Wade points to a string of incidents to support his contention that Eversole and the
Montgomery Jail have a history of using excessive force on restrained inmates in the
Montgomery County Jail. Before he was promoted to the rank of sergeant, Eversole had, as a
road-patrol deputy, struck an inmate by the name of Kenneth Christman in the head after he was
handcuffed and was laying on the ground. (Depo. Eversole 90:15.). Shortly thereafter, Eversole
was promoted to the rank of sergeant on January 3, 2015 and transferred into the Montgomery
County Jail. (Depo. Eversole 16:11.) In the Fall of 2015, just a few months after his promotion,
Eversole watched a video of Sgt. Judith Sealey pepper spraying inmate Amber Swink until she
became unconscious while fully restrained in a restraint chair. (Depo. Eversole 102:22).
Likewise, Lightner was the corrections officer who was ordered to open the door for Sgt. Sealy
so she could spray Mrs. Swink with the pepper spray. (Depo. Lightner 14:1). Eversole also knew
that Lightner participated in the incident involving Mrs. Swink. (Depo. Eversole 180:18.)
Approximately three (3) months before the incident involving Plaintiff Charles Wade,
Sgt. Eversole also utilized pepper spray on another handcuffed inmate, Randy Desruisseau.
(Depo. Eversole 92:19, 95:9; Depo. Plummer 93:23; Exhibit 26.) As with Amber Swink, there
7
was no investigation into the incident. (Depo. Eversole 96:23). Major Scott Landis, who
oversaw all jail operations, never investigated any use of force by Eversole. (Depo. Landis 24:6.)
On September 13, 2016 Amber Swink filed suit, making national news, being reported by
the Washington Post. Still nothing was done internally to address the use of force issues within
the jail. (Depo. Eversole 107:13, 108:16.). Just over a month after the Amber Swink incident
became public, the incident involving Wade occurred.
On February 14, 2017, Wade filed the instant action asserting Excessive Use of Force, in
violation of 42 U.S.C. §1983; Amendments 4, 8, and 14 to the United States Constitution,
Monell liability for unconstitutional Policies and Procedure, also in violation of 42 U.S.C. §
1983. Failure to Supervise & Discipline 42 U.S.C. 1983; a state law claim for “Malice & Gross,
Wanton, Willful and Reckless Wrongful Conduct;” as well as assault and battery against
Defendants Eversole and Lightner; Intentional Infliction of Emotional Distress Against All
Defendants in Their Individual Capacities; Conspiracy to Falsify And/Or Omit Required Reports
and Conspiracy to Destroy Videotape Evidence; Spoliation of Evidence / Interference with Right
to Remedy. ECF 1.
Defendants have now filed a Motion for Summary Judgment. ECF 61. The motion
claims that no triable issues of fact remain and that Defendants Eversole and Lightner are
entitled to qualified immunity, and that Defendants Eversole and Lightner are also entitled to
summary judgment on the merits of the excessive use of force claim. The motion further
asserts that Plaintiffs’ official capacity claims must be dismissed and that Sheriff Plummer is not
liable for any action taken in his personal capacity, that Montgomery County is not liable for
Monell liability, and that Defendants Eversole and Lightner are entitled to state law immunity for
8
the state law claims of assault and battery, that Defendants are entitled to summary judgment on
the intentional infliction of emotional distress and that conspiracy and spoliation claims should
be dismissed.2
II.
Standard of Review
The standard of review applicable to motions for summary judgment is established by
Federal Rule of Civil Procedure 56 and associated case law. Rule 56 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. at 56(c). 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)). Thus, summary judgment
must be entered “against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (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, admissions and affidavits which it believes demonstrate the absence of a genuine
issue of material fact. Id., at 323. The burden then shifts to the nonmoving party who “must set
2 Plaintiff does not dispute Defendant’s motion for summary judgment on these claims. Summary judgment is
granted on the conspiracy and spoliation claims.
9
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S., at 250
(quoting Fed. R. Civ. at 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 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’ affiants are more credible. 10A Wright
& Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations must be
left to the fact-finder. Id.
With regard to the role of video evidence in determining a summary judgment motion, the
Sixth Circuit has held:
Where, as here, there is a videotape capturing the events in question,
the court must view those facts in the light depicted by the videotape.
However, where the video does not tell the whole story in a material
respect, or reasonable jurors could interpret the video evidence
differently, summary judgment is not appropriate. Moreover, even
if part of a party’s testimony is blatantly contradicted by an audio or
video recording, that does not permit the district court to discredit
his entire version of the events. In other words, that a recording
blatantly contradicts a party’s exact version of the events, or certain
parts of his version, is not alone fatal at summary judgment. A
recording must blatantly contradict a party’s entire version of the
events in material respects to each claim.
10
Hanson v. Madison Cty. Det. Ctr., 6th. Cir. Case No. 17-5209, 2018 U.S. App. LEXIS 13261, *1314 (May 22, 2018) (internal citations omitted); quoting Green v. Throckmorton, 681 F.3d 853, 859
(6th Cir. 2012); Scott v. Harris, 550 U.S. 372, 378 (2007); Coble v. City of White House, 634 F.3d
865, 870 (6th Cir. 2011).
Finally, 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).
Thus, in determining whether a genuine issue of material fact exists on a particular issue, the court
is entitled to rely upon the Rule 56 evidence specifically called to its attention by the parties.
III.
Analysis
Excessive Use of Force – Defendants Eversole and Lightner
Plaintiff charges Defendants Eversole and Lighter with excessive use of force. In
response to Plaintiff’s claims, Defendants allege that they are entitled to qualified immunity.
Courts apply the Fourth Amendment's “objective reasonableness” test to allegations that
government officials used excessive force during the booking process. Burgess v. Fischer, 735
F.3d 462, 472–73 (6th Cir. 2013) (“not the Fourteenth Amendment's “shocks the conscience”
test or the Eighth Amendment's “cruel and unusual punishment” test”). “‘[A] pretrial detainee
must show only that the force purposely or knowingly used against him was objectively
unreasonable.’” Morabito v. Holmes, 628 Fed. Appx. 353, 357 (6th Cir. 2015) (quoting Kingsley
v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015)).
In assessing objective reasonableness, courts look “to the reasonableness of the force in
light of the totality of the circumstances confronting the defendants, and not to the underlying
11
intent or motivation of the defendants.” Burgess, 735 F.3d at 472; see Kingsley, 135 S.Ct. at
2475–76 (rejecting a subjective standard). “The qualified immunity doctrine ‘protects
government officials from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” Goodwin v. City of Painesville, 781 F.3d 314, 320-21 (6th Cir. 2015) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)). Courts ask two questions: (1) whether the plaintiff's
federally-protected rights were violated, and (2) whether those rights were clearly established at
the time. Id. “These questions may be answered in either order; if either one is answered in the
negative, then qualified immunity protects the officer from civil damages.” Id. (citing Martin v.
City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013)). In the excessive-force context,
the law is “clearly established” only if the plaintiff “identif[ies] a case where an officer acting
under similar circumstances ... was held to have violated the Fourth Amendment.” White v.
Pauly, ––– U.S. ––––, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017).; see also Evans v. Plummer,
687 F. App'x 434, 440 (6th Cir. 2017).
“[T]here is no need for any force when a detainee is handcuffed, non-threatening, and not
trying to flee.” Burgess, 735 F.3d at 470, 475. (citing McDowell v. Rogers, 863 F.2d 1302,
1307 (6th Cir. 1988)). See also Evans v. Plummer, 687 F. App'x 434, 441–42 (6th Cir. 2017).
The primary question is whether there was a need for Eversole or Lightner to use force in
the form of pepper spray or wrist manipulation while securing Wade in the restraint chair. At
the time these forces were utilized, Wade was already partially restrained in a restraint chair,
sitting in the chair with both legs strapped in and lap belt secured and had his hands handcuffed
12
behind his back. (Depo. Eversole 159:11, 176:4, Ex. 29A, at 3:57). He could not stand up and
was restricted from making any significant movement.
Major Scott Landis, who oversaw jail operations, admitted an inmate restrained in such a
manner would be considered fully restrained. (Depo. Landis 43:6.). Wade was in the County
Jail, surrounded by at least five members of the Jail staff. The corrections officers testified they
did not feel threatened by Wade and he was not in a position to cause them any harm. (Depo.
Eversole 183:6, 184:1; Depo. Lightner, 54) He did not try to harm them. Id. It does not
appear that he could have harmed himself sitting strapped into the restraint chair with his arms
handcuffed behind his back. The restraint chair is a wide-based chair on rollers, not susceptible
to tipping over. Wade was complying with being strapped into the chair up until the point that
Lightner manipulated his wrist.
Assuming all facts in the light most favorable to Plaintiff, the Court cannot say that a jury
could find Lightner’s actions unreasonable. The officers needed to remove the handcuffs from
Plaintiff, and some amount of force is reasonable in achieving this. More importantly, Plaintiff
can point to no cases finding wrist manipulation to be a constitutional violation. Lightner is
entitled to summary judgment, both because it cannot be said that his actions were unreasonable,
and because case law has not established that his actions were unconstitutional, granting him
qualified immunity.
The same cannot be said of Eversole. Wade was restrained, going nowhere, unarmed,
surrounded by five officers, controlled by them. A jury would be entitled to find Eversole to
have violated Wade’s constitutional rights based on the evidence viewed in the light most
favorable to Plaintiff. Moreover, it has been established that utilizing pepper spray on a
13
restrained inmate is an excessive use of force in violation of the Fourth Amendment. “[I]n the
context of the police’s use of chemical spray to subdue a suspect, we held that it was clearly
established in 1999 that a police officer’s use of pepper spray against a suspect after he was
handcuffed and hobbled constituted excessive force.” Bultema v. Benzie County, 146 Fed. Appx.
28, 37 (6th Cir. 2005); citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir.
2004). “[T]he use of pepper spray on a handcuffed and hobbled person has been clearly
established to be excessive force.” Grawey v. Drury, 567 F.3d 302, 310 (6th Cir. 2009); citing
Champion. “We have precedents stretching back at least to 1994 indicating that spraying a
suspect with mace — then the equivalent of later-developed pepper sprays and electroshock
devices — can amount to excessive force if used unreasonably against a non-resisting suspect.”
Schmalfeldt v. Roe, 412 Fed. App’x 826, 828 (6th Cir. 2011); citing Adams v. Metiva, 31 F.3d
375, 387 (6th Cir. 1994). Also, “pretrial detainees cannot be subjected to the use of excessive
force that amounts to punishment, precisely because they cannot be punished at all.” Coley v.
Lucas Cty., Ohio, 799 F.3d 530, 538 (6th Cir. 2015) (internal quotations omitted).
Pattern and Practice
The remaining two branches of Wade’s constitutional claims are for unconstitutional
policies or procedures and unconstitutional failures to supervise or discipline employees. As
these claims all fall under the United States Supreme Court’s decision in Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978), they will be addressed together. Plaintiff alleges Montgomery
County has an unconstitutional policy of allowing its corrections officers to use excessive force
and points out that it has failed to meaningfully investigate uses of force and thus ratified all but
one use of force by Montgomery County jail officers.
14
A plaintiff raising a municipal liability claim under § 1983 must demonstrate that the
alleged federal violation occurred because of a municipal policy or custom. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). A plaintiff can make a showing of an illegal policy or
custom by demonstrating one of the following: (1) the existence of an illegal official policy or
legislative enactment; (2) that an official with final decision-making authority ratified illegal
actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of
a custom of tolerance or acquiescence of federal rights violations. See Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005), and Burgess, 735 F.3d at 478.
Wade asserts that the Montgomery County Sheriff cultivated a “custom of tolerance or
acquiescence” toward uses of excessive force at the Montgomery County Jail, thus leading the
officers to believe that they would not be disciplined for using excessive force and encouraging
them to do so. To prove a claim for municipal liability under this theory: (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. Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996).
Plaintiff points to evidence from seven prior cases that support his Monell claim; Swink v.
Montgomery County, Wallace v. Montgomery County, Aldinin v. Johnson, Hopper v. Plummer
(Richardson), Pate-Strickland v. Montgomery County, Evans v. Montgomery County, and
Guglielmo v. Montgomery County. (Doc #72, PID #2009-2012). Plaintiff notes that of these
15
seven cases he cites, five have been settled and two are still pending before this court, Hopper
(Richardson) and Guglielmo. (Doc #72, PID #2012).
Defendant claims that Federal Rule of Evidence 408 forbids looking to these cases for
evidence of a pattern. However, Federal Rule of Evidence 408 only limits the use of settlement
conversations “to prove or disprove the validity or amount of a disputed claim or to impeach by a
prior inconsistent statement,” neither of which is the purpose for which it is offered here. See
ICONICS, Inc. v. Massaro, 192 F. Supp. 3d 254, 271 n.9 (D. Mass. 2016).
While the Court will not take judicial notice of these cases, Plaintiff may be able to
introduce evidence from these cases or testimony regarding them at trial on the existence of a
pattern of practice. The Court will bifurcate the trial question of Eversole’s liability from the
existence of a pattern or practice. Evidence of a pattern or practice will only be presented if a
jury finds that Eversole has violated Plaintiff’s right to be free of excessive use of force.
Intentional Infliction of Emotional Distress
Under Ohio law, the elements of a claim of IIED are:
“(1) the defendant intended to cause emotional distress or knew or
should have known that its conduct would result in serious
emotional distress to the plaintiff; (2) defendant’s conduct was
outrageous and extreme beyond all possible bounds of decency and
was such that it can be considered utterly intolerable in a civilized
community; (3) defendant’s conduct was the proximate cause of
plaintiff’s psychic injury; and (4) plaintiff’s emotional distress was
serious and of such a nature that no reasonable person could be
expected to endure it.”
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir. 2008) (quoting
Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557, 698 N.E.2d 503, 506 (1997)).
“Serious” emotional distress must be “severe and debilitating.” Long, 193 F. App’x at 503. A
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reasonable juror could find that pepper spraying a restrained individual meets the elements of
intentional infliction of emotional distress.
State Law Immunity for the State Law Claims of Assault and Battery
Defendants assert Sgt. Eversole and Officer Lightner are entitled to immunity under
Chapter 2744 of the Ohio Revised Code for the state law claim of battery. In Ohio, a police
officer is immune from liability in performing a governmental function unless the officer's “acts
or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”
O.R.C. § 2744.03(A)(6)(b). The Southern District of Ohio has recognized and discussed how
Ohio law defines the terms “malice,” “bad faith,” “wanton” and “reckless” in the context of
O.R.C. § 2744.03(A)(6)(b). See, e.g., Collin v. Stephenson, 2002 U.S. Dist. LEXIS 21573, S.D.
Ohio No. C2-00-494 (S.D. Ohio 2002). All of the terms involve conduct greater than mere
negligence. See Cook v. City of Cincinnati, 103 Ohio App. 3d 80, 658 N.E.2d 814, (1st App.
Dist. 1995).
The pepper-spraying of Wade would support a finding that Eversole acted with malicious
purpose, bad faith, wantonness, or recklessness in dealing with Evans. Such is not the case with
regard to Lightner. Lightner is entitled to immunity under Chapter 2744. The claims for
battery and assault against Eversole may go forward.
Official Capacity Claims
Claims under 42 U.S.C. § 1983 are, in all respects other than name, claims against the
entity, not against individuals in their official capacity. Kentucky v. Graham, 473 U.S. 159, 166
(1985). “Official-capacity suits (…) ‘represent only another way of pleading an action against
an entity of which an officer is an agent.’” Hafer v. Melo, 502 U.S. 21, 25 (1991), quoting
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Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978); Essex v. County of
Livingston, 518 Fed. Appx. 351, 354 (6th Cir. 2013). Where the governmental entity itself is
also a defendant, a claim against an official or employee of the entity in their official capacity is
superfluous or redundant. Slocum v. City of Cleveland Heights, USDC Case No. 1:14-CV-00532,
2014 U.S. Dist. LEXIS 83700, *8 (June 19, 2014, N.D. Ohio). This pertains to all individuals
named as Defendants,
Sheriff Plummer is not liable for any action taken in his Personal Capacity. The record
contains no evidence that Sheriff Plummer was involved in any manner with the force utilized on
Wade. Plaintiff fails to make any statements regarding allegations that Sheriff Plummer
personally did anything in relation to the incident with Wade.
Similarly, Plaintiff has no evidence to establish any claims against Defendant Landis.
See Frodge v. City of Newport, 501 F. App'x 519, 532 (6th Cir. 2012) (“even if Simmons had
violated Plaintiffs' constitutional rights, their supervisory liability claims would still fail.
Plaintiffs argue that Hall, Morgan, and Kunkel ratified Simmons's conduct by failing to
investigate the incident and failing to discipline Simmons for making an invalid arrest and using
excessive force. This is insufficient to make supervisors liable for their subordinates' conduct.
Plaintiffs must present evidence that Hall, Morgan, and Kunkel ‘did more than play a passive
role in the alleged violation.... Supervisory liability under § 1983 cannot attach where the
allegation of liability is based upon a mere failure to act.’ Bass v. Robinson, 167 F.3d 1041, 1048
(6th Cir.1999)”).
Conclusion
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Because there is no evidence Defendant Lighter behaved in an unreasonable manner and
because case law does not clearly establish that it is unconstitutional to manipulate a detainee’s
wrists while trying to secure him in a chair, Defendants’ motion to dismiss is GRANTED with
respect to Lighter. Because it is clearly established that an officer may not pepper spray a
restrained detainee and because Eversole’s actions were unreasonable when viewed in a light most
favorable to Plaintiff, Defendants’ motion is DENIED with respect to Eversole. Because there
is evidence that would support a finding of malice against Eversole, but not Lightner, and because
Eversole’s actions could be found to shock the conscience, the motion is GRANTED with regard
to the state law claims against Lightner, but DENIED with regard to the state law claims against
Eversole. Because supervisory liability under § 1983 cannot attach where the allegation of
liability is based upon a mere failure to act, the motion is GRANTED with regard to Landis.
Because Plaintiff agrees that he has no conspiracy claim or spoliation claim, the motion is
GRANTED with regard to these claims. Because Plaintiff has evidence that, if believed, would
constitute a pattern or practice violating rights, Defendants’ motion is DENIED with respect to
Plaintiff’s Monell claim.
DONE and ORDERED in Dayton, Ohio, this Tuesday, December 4, 2018.
s/Thomas M. Rose
_____________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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