Michael J. Newman, United States Magistrate Judge.
This 42 U.S.C. § 1983 case, for which the parties have consented, is before the Court on the motions for summary judgment filed by: (1) Defendants Sheriff Phil Plummer, Sergeants Ted Jackson and Brian Lewis, Corrections Officers Dustin Johnson, Mathew Henning, Michael Beach, Keith Mayes, Bradley Marshall, Michael Stumpff, and Sheriff Deputy Andrew Wittman (collectively referred to as the "County Defendants"); and (2) Defendants NaphCare, Inc., Nurses Kristy Kruse,
The County Defendants also filed a motion to strike certain evidence relied upon by Plaintiff to oppose summary judgment. Doc. 150. Plaintiff filed a memorandum in opposition to the motion to strike. Doc. 154. Thereafter, the County Defendants filed a reply memorandum. Doc. 155.
The Court has carefully considered all of the foregoing, including the evidence cited in support thereof. Accordingly, the County Defendants' motions are ripe for review and decision.
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Summary judgment is only appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). "Weighing of the evidence or making credibility determinations are prohibited at summary judgment — rather, all facts must be viewed in the light most favorable to the non-moving party." Id.
Once "a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading[.]" Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010) (citation omitted). Instead, the party opposing summary judgment has a shifting burden and "must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial." Id. (citation omitted). Failure "to properly address another party's assertion of fact as required by Rule 56(c)" could result in the Court "consider[ing] the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).
Finally, "there is no duty imposed upon the trial court to `search the entire record to establish that it is bereft of a genuine issue of material fact.'" Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992) (citations omitted). Instead, "[i]t is the attorneys, not the judges, who have interviewed the witnesses and handled the physical exhibits; it is the attorneys, not the judges, who have been present at the depositions; and it is the attorneys, not the judges, who have a professional and financial stake in case outcome." Id. at 406. In other words, "the free-ranging search for supporting facts is a task for which attorneys in the case are equipped and for which courts generally are not." Id.
As ordered by the undersigned, Defendants filed a statement of proposed undisputed facts (docs. 112-1, 114-1), to which Plaintiff responded — by admitting certain facts are undisputed or otherwise citing portions of the record demonstrating the existence of a material dispute of facts (docs. 123-9, 124-5). The parties support these statements by citing to evidence filed
This case concerns the death of Robert Richardson at the Montgomery County, Ohio Jail ("Jail") on May 19, 2012. The Montgomery County Sheriff's Office ("MCSO") is in charge of operating and managing the Jail. Doc. 124-5 at PageID 3795-96. On May 19, 2012, the MCSO employed Defendants Jackson, Lewis, Henning, Beach, Mayes, Marshall, Stumpff, and Wittman. Id. Defendant NaphCare, Inc. ("NaphCare") is a correctional healthcare provider that provides medical services at the Jail pursuant to a contract with the MCSO. Id. at PageID 3795. Defendants Felicia Foster, R.N.; Krisandra Miles, LPN; and Steven Stockhauser, EMT were employees of NaphCare on May 19, 2012. Id. Brenda Garrett Ellis, M.D. was a contractor of NaphCare. Id.
On May 17, 2012, Richardson was arrested on a capias issued from the Montgomery County, Ohio Juvenile Court as a result of his failure to appear for child support enforcement proceedings. Doc. 123-4 at PageID 3638; doc. 123-9 at PageID 3671. Richardson was found and arrested, then booked into the Jail on May 17, 2012. Id. Later that same day, without having appeared before any court, Montgomery County Juvenile Judge Anthony Capizzi entered an order imposing upon Richardson a 30-day jail sentence, from which Richardson could be released upon the payment of $2,500.00 to Montgomery County Child Support Enforcement Agency ("SEA"). See doc. 123-6 at PageID 3630. Although no other Juvenile Court records or transcripts are before the Court on summary judgment, the undersigned presumes — construing all reasonable inferences in Plaintiff's favor — that Judge Capizzi issued this sanction upon finding Richardson in contempt for failing to appear and/or for failing to pay child support obligations. See docs. 123-4, 123-6.
Upon arriving at the Jail, Richardson underwent a medical screening. Doc. 124-5 at PageID 3796. Records from such screening show that Richardson was six feet tall, weighed 280 pounds, had high blood pressure, and was not taking any medications. Id. At the Jail, Richardson shared a cell with Marcus Maxwell. See doc. 123-9 at PageID 3671. On May 19, 2012, upon returning to his cell after visiting with his fiancé, Richardson began suffering from an apparent medical issue. Id.; see also doc. 78 at PageID 843-44. According to responding corrections officers, Richardson appeared to be having a seizure and was making seizure type movements, such as thrashing his body around. See doc. 78 at PageID 845.
Defendant Ted Jackson, a Sergeant with the MCSO, was the first to arrive at Richardson's cell, along with Defendant Justin Johnson, a MCSO corrections officer. Doc. 83 at PageID 1109. When Jackson and Johnson arrived, Richardson was sitting on the floor, attempting to stand. Id. at PageID 1109. Richardson had blood and saliva coming from his mouth. Id. at PageID 1111. He was disoriented ("he's looking at you, but he isn't"), had accelerated breathing, was lethargic, and was unable to comprehend officers' verbal commands. Id. at PageID 1109-11. Throughout the entire incident, MCSO corrections officers consistently testified that Richardson neither hurt anyone nor attempted to hurt anyone
MCSO officers successfully removed Richardson from his cell without issue. Id. at PageID 1113. Once removed, Richardson was in a face down position on the concrete floor outside the cell on the second floor walkway. Id. Once removed from the cell and lying face down on the ground on the upper level walkway of the cell block, Richardson kept "drawing his arms into — under his body ... in a natural position to lift himself up, because he's still trying to stand up at this point." Id. at 1114. Because a disoriented Richardson was attempting to stand up and posed a risk to his own safety — as well as the safety of others on the second floor walkway — Jackson made the decision to handcuff Richardson in an effort "[t]o gain more control over him[.]" Id.
Officer Michael Stumpff, Sergeant Brian Lewis, and Officer Matthew Henning all arrived on the scene after Jackson and Johnson, and assisted in cuffing Richardson by holding his arms. Doc. 85 at PageID 1230-31; doc. 89 at PageID 1381. Officer Marshall and Defendant Stockhauser — a NaphCare medic — were also on the scene while officers were handcuffing Richardson. Doc. 87 at PageID 1309; doc. 108 at PageID 3266, 3274-76. Although all County Defendants state otherwise, Medic Stockhauser testified that, as MCSO Defendants were handcuffing Richardson, he and one of the NaphCare nurses "told corrections [officers]," namely Lewis, "to cuff [Richardson] in the front so [medical staff] could better assess [him]." Doc. 108 at PageID 3266, 3274-76. Medic Stockhauser's medical recommendation was not followed by corrections officers.
Richardson was cuffed in under one minute and, thereafter, officers remained on the scene to restrain Richardson to the floor. Doc. 83 at PageID 1117. Marshall restrained Richardson's right shoulder, applying pressure when needed to control Richardson from moving. Id. at PageID 1309-10. Marshall admitted that, at times, he placed one to two hands on Richardson's back to control his movements. Id. Stumpff was positioned at Richardson's left shoulder near his head — where he saw blood and mucus coming from Richardson's mouth and nose — and restrained Richardson from lifting his shoulder. Doc. 89 at PageID 1385. Johnson assisted by straddling Richardson's lower body at his thigh/hip area. Doc. 84 at PageID 1163-64. Officer Henning assisted in kneeling over Richardson's legs. Doc. 82 at PageID 1085.
After about seven minutes on the scene, Johnson's shift ended and he was relieved of duty by Officer Beach, who took over straddling Richardson legs. Doc. 84 at PageID 1169; doc. 77 at PageID 816-17. Officer Henning was relieved of duty and left the scene after nine minutes and the record is unclear as to whether Henning — a
With regard to medical care, once Richardson was handcuffed and the scene was safe, Medic Stockhauser — noting at that time Richardson's disorientation and that he was suffering a likely seizure — began wiping bloody sputum from Richardson's face and trying give him oxygen. See doc. 108 at PageID 3281-82 (stating that "oxygen is the first ... thing to use on somebody that just had a seizure"). Medic Stockhauser also placed a towel under Richardson's head to prevent it from striking the concrete. Doc. 105 at PageID 2938. Nurse Miles, who arrived on the scene around the same time as Medic Stockhauser, was trying to talk to Richardson and assess him. Doc. 105 at PageID 2930-32. Otherwise, Nurse Miles stood and watched Medic Stockhauser. Id. at PageID 2934.
Nurse Foster arrived on the scene after Richardson had been handcuffed and left after a couple of minutes to speak with Dr. Ellis. Doc. 107 at PageID 3162-63. Dr. Ellis, after being advised by Nurse Foster, ordered that Richardson be given Ativan. Doc. 105 at PageID 2875, 2959; doc. 107 at PageID 3165. Nurse Miles delivered the Ativan syringe to Nurse Kruse, which was not successfully injected and, instead, spilled onto the floor. Id. A second dose of Ativan was then ordered, which Nurse Foster delivered to the scene and administered herself in Richardson's gluteal muscle. Doc. 107 at PageID 3165-66. Notably, no Ativan was detected in Richardson's blood on autopsy, however. See doc. 94 at PageID 172. Nurse Foster then left the scene shortly after administering the second Ativan shot. Id. at PageID 3175.
Soon thereafter, all medical staff backed away from the scene so that Richardson could presumably be placed into a restraint chair. Doc. 105 at PageID 2886. During Richardson's restraint, inmates at the jail state they heard him tell those on the scene that he could not breathe. Doc. 92 at PageID 1587. Officer Stumpff himself testified that Richardson may have indicated he could not breathe while being restrained. See doc. 89 at PageID 1375.
After approximately twenty-two minutes of being restrained on the floor, MCSO officers realized that Richardson had stopped breathing. Id. at PageID 1387-88. Richardson subsequently died. Id. at PageID 1389. While the parties dispute the ultimate cause of Richardson's death, Plaintiff presents evidence that, when construed in his favor, shows that Richardson died as a result of positional or restraint asphyxia while being restrained in a prone position by multiple corrections officers at the Jail on May 19, 2012. Doc. 123-1 at PageID 3582; doc. 124-2 at PageID 3758-59.
Plaintiff presents expert evidence from Michael Berg, a corrections expert, who states that, within the field of corrections, it has long been understood that pinning individuals to the ground in prone restraint for unreasonably long periods of time is dangerous and likely to cause death. Doc. 123-8 at PageID 3636. Berg further testifies that corrections facilities must develop clear policies governing the
On August 3, 2009, prior to Richardson's death, then-Ohio Governor Ted Strickland issued Executive Order 2009-13S, titled "Establishing Restraint Policies Including a Ban on Prone Restraints," wherein he ordered a number of state agencies, including the Ohio Department of Rehabilitation and Corrections,
Id. at PageID 2110. The policy advanced in the Executive Order permitted, under certain conditions, a "brief physical positioning of an individual face down for the purpose of quickly and effectively gaining physical control of that individual in order to prevent harm to self and others, or prior to transport to enable the individual to be transported safely." Id. at 2110-11 (emphasis added).
Similar to the prohibition advanced by former Governor Strickland in Executive Order 2009-13S, the Montgomery County Jail's official policies prohibit "placing prisoners who are in restraints in prone ... position[ ][.]" Doc. 96-4 at PageID 2131. Despite existence of this policy, however, County Defendants testified that there was "nothing in our training that says we cannot have somebody in a prone position and handcuffed." Doc. 85 at PageID 1238; doc. 90 at PageID 1420 (wherein Defendant Stumpff testified that "I've been through many trainings, and I've never been told not to do that"). In fact, some County Defendants testified that they are trained to do the opposite, i.e., place people in a prone position with hands cuffed behind their back. Doc. 88 at PageID 1339.
The County Defendants move for summary judgment on all of Plaintiff's claims. Doc. 114. Specifically, Plaintiff has asserted the following constitutional claims under 42 U.S.C. § 1983: (A) an excessive use of force claim against the individual County Defendants; (B) a deliberate indifference to medical needs claim against all of the individual Defendants; and (C) a claim for municipal liability under Monell for failure to supervise, train, discipline, or conduct an adequate investigation. Doc. 73. Plaintiff also asserts a state law wrongful death claim against the County Defendants premised on an alleged claim of assault and battery. Id. The Court will address the arguments on each of these claims in turn.
The Court first addresses Plaintiff's § 1983 claim asserting excessive force, which Plaintiff alleges arises from the forcible restraint of Richardson in a prone
"Government officials, including police officers, are immune from civil liability unless, in the course of performing their discretionary functions, they violate the plaintiff's clearly established constitutional rights." Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010). Simply put, qualified immunity "protects `all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). With regard to the individual County Defendants, they are entitled to qualified immunity unless "the evidence produced, when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that (1) the defendant violated a constitutional right; and (2) the right was clearly established." Aldini, 609 F.3d at 863; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct." Id.
"The Fourth Amendment's prohibition against unreasonable seizures of the person applies to excessive-force claims that `arise[ ] in the context of an arrest or investigatory stop of a free citizen,' while the Eighth Amendment's ban on cruel and unusual punishment applies to excessive-force claims brought by convicted criminals serving their sentences." Aldini, 609 F.3d at 864 (citations omitted). "When neither the Fourth nor the Eighth Amendment serves to protect citizens, courts have applied the Fourteenth Amendment." Id. (citing Lanman v. Hinson, 529 F.3d 673, 680-81 (6th Cir. 2008)). "[W]hich amendment applies depends on the status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in between." Id. at 865 (citing Gravely v. Madden, 142 F.3d 345, 348-49 (6th Cir. 1998)).
Here, Richardson was arrested on a capias issued by the Montgomery County Juvenile Court because of his failure to appear at child-support related hearings. See doc. 123-4 at PageID 3627-28. As noted, later on the same day of his arrest — without having ever appeared before a judge following his arrest, the Juvenile Court — presumably having found Richardson in contempt for his failure to appear, failure to pay child support obligations, or both — issued an entry imposing a 30-day sentence on Richardson, but also stating that he could be released from jail upon the payment of $2,500.00 to the SEA. Doc. 123-6 at PageID 3630.
From the Court's perspective, to identify the Amendment applicable to Plaintiff's excessive force claim, the critical determination is whether the sentence or sanction imposed upon Richardson by the Juvenile Court was criminal or civil. If the contempt sanction is civil, "the Eighth
"[T]he characterization of [a] proceeding and the relief given as civil or criminal in nature, for purposes of determining the proper applicability of federal constitutional protections, raises a question of federal law rather than state law." Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 630, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Under federal law,
Here, the sanction imposed by the Juvenile Court was a 30-day sentence in jail unless and until Richardson paid $2,500 to SEA. See doc. 123-6 at PageID 3630. Accordingly, under the circumstances, the Court concludes that Richardson was being held for civil contempt and, as a result, the Eighth Amendment Cruel and Unusual Clause cannot and does not apply. See Spallone, 487 U.S. at 1257, 109 S.Ct. 14. Instead, because Richardson was neither a convicted prisoner nor a free citizen, the undersigned concludes that he falls within the "gray area" where "the Fourteenth Amendment's more generally applicable Due Process Clause governs to
Under the Fourteenth Amendment, Plaintiff's burden is to "show ... that the force purposely or knowingly used against him was objectively unreasonable." Morabito, 628 Fed.Appx. at 357 (citing Kingsley, 135 S.Ct. at 2473). In Kingsley, the Supreme Court held that an excessive force analysis under the Fourteenth Amendment — as opposed to under the Eighth Amendment — contains no subjective reasonableness inquiry. See Kingsley, 135 S.Ct. at 2472-73. Thus, the Court's only inquiry under a Fourteenth Amendment excessive force analysis is "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Clay, 797 F.3d at 370.
In determining objective reasonableness, courts consider a number of factors, such as "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Kingsley, 135 S.Ct. at 2466. Under this objective inquiry, "[a]n officer's evil intentions will not make a Fourth Amendment violation" just as "officer's good intentions [will not] make an objectively unreasonable use of force constitutional." Graham, 490 U.S. at 397, 109 S.Ct. 1865.
The County Defendants argue that Plaintiff cannot show a genuine issue of material fact concerning objective unreasonableness because no evidence shows that any of the County Defendants applied compressive force to Richardson's torso during the five minutes before his death. Doc. 114 at PageID 3340. The County Defendants argue that, to survive summary judgment, Plaintiff must show an issue of fact within these limited confines based upon the testimony of Plaintiff's expert Daniel Spitz, M.D., who the County Defendants contend testified that: (1) restraint asphyxia occurs only when force is applied to the torso; and (2) the relevant time period at issue is the last five minutes of the twenty-two minute event. Doc. 114 at PageID 3429, 3340.
The Court finds the County Defendants' limited focus, concerning the time frame and the type of compressive force applied, to be unfounded. First, Dr. Spitz's testimony is equivocal on whether compressive force to the torso itself is the only use of force that can lead to asphyxia of restrained individuals held in a prone position. See doc. 99 at PageID 2414. Further, Dr. Spitz's testimony does not support the County Defendants' contention that the
Id. (emphasis added). A reasonable juror could conclude, based upon Dr. Spitz's testimony, that compressive restraint of Richardson's entire body — including some force applied to his back and legs — in-and-out of a prone position over a twenty-two minute period, led to his death. Id.
Further, contrary to the County Defendants' contention, evidence has been presented showing compressive restraint of Richardson (including to his torso) for
In addition to the jail video, witnesses Jason Haag and Keith Wayne — both inmates at the Jail at the time of the incident — testified that officers applied compressive force to Richardson's neck, head, shoulders and back as he continually told officers that he could not breathe. See doc. 92 at PageID 1587, 1593, 1603-06; doc. 93 at PageID 1637. The County Defendants urge the Court to exclude the testimony of these two witnesses as a matter of law under Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), as inherently not credible based upon their limited or completely obstructed view. In Scott, the Supreme Court held that, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380, 127 S.Ct. 1769. In that case, a video of the incident at issue — a high speed car chase — told "quite a different story" than respondent's testimony offered in opposition to summary judgment. Id. at 379-80, 127 S.Ct. 1769. Here, a reasonable jury could conclude that the aforementioned Jail video actually corroborates much of the testimony offered by Haag and Wayne concerning what they allegedly saw on May 19, 2012.
Further, the Court is cognizant that "[e]ach defendant's liability must be assessed individually based on his [or her] own actions." Pollard v. City of Columbus, Oh., 780 F.3d 395, 402 (6th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 217, 193 L.Ed.2d 130 (2015) (citing Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)). Specifically, with regard to excessive force claims, "a plaintiff must prove that the officer (1) actively participated in the use of excessive force, (2) supervised the officer who used excessive force, or (3) owed the victim a duty of protection against the use of excessive force." Id. (citation omitted).
In this instance, all of the County Defendants either actively participated in the use of allegedly excessive force or supervised the other officers. The Court, as set forth above, declines to limit its inquiry to the five minutes immediately preceding Richardson's death and, instead, considers the incident as a whole. Doc. 99 at 2414 (wherein Dr. Spitz testified "Richardson is already in a compromised state leading into those last five minutes because he's
As noted previously, evidence shows that Jackson, Lewis, Johnson, Stumpff and Beach all participated in cuffing Richardson while in a prone position. See doc. 89 at 1381. Marshall applied pressure to Richardson's right shoulder while he was restrained to control Richardson's movement, and he admitted that, at times, he placed one to two hands on Richardson's back. Doc. 87 at PageID 1309-10. Stumpff restrained Richardson near his head at the left shoulder to prevent him from lifting his shoulder. Doc. 89 at PageID 1385. Johnson straddled Richardson's lower body at his thigh/hip area. Doc. 84 at PageID 1163-64. For up to nine minutes, Henning kneeled over Richardson's legs. Doc. 82 at PageID 1085. Beach relieved Johnson after about seven minutes and continued straddling Richardson legs. Doc. 84 at PageID 1169; doc. 77 at PageID 816-17. Fifteen minutes into the incident, Mayes restrained Richardson's head, doc. 88 at PageID 1351, and video evidence can reasonably be construed to show he placed significant pressure on the back of Richardson's head and neck. See doc. 116. Finally, Wittman came onto the scene approximately sixteen minutes into the incident and restrained Richardson's left arm. Doc. 90 at PageID 1426.
In addition to the foregoing, both Jackson and Lewis were supervisors on the scene. A supervising official can be individually liable under § 1983 where "the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it." Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016). Thus, "`at a minimum,' the plaintiff must show that the defendant `at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.'" Id. (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Here, issues of fact remain concerning the individual supervisor liability of Jackson and Lewis based upon — at a minimum — the fact that Jackson and Lewis participated in cuffing Richardson; were on the scene while Richardson pleaded to officers that he could not breathe; and were on the scene while subordinate officers restrained Richardson to the floor for what a jury could conclude was an extended and unreasonable period of time. Doc. 83 at PageID 1112-17; doc. 83 at PageID 1231. In addition, a disputed issue of fact remains as to whether Lewis (and potentially Jackson) refused Medic Stockhauser's medical advice to cuff Richardson's hands in the front and to place him on his back so that he could be properly assessed. Doc. 108 at PageID 3266, 3274-76.
Based upon all of the foregoing, the undersigned finds no merit to Defendants' arguments in this regard and finds that genuine issues of material fact remain concerning the reasonableness of the force used in this case.
The next step in the qualified immunity analysis concerns whether the right allegedly violated by the individual County Defendants was "clearly established" at the time of Richardson's death. See supra. A right is "clearly established" when "existing precedent ... placed the
In finding a right "clearly established," the Court need not rely upon "a case on point," id., or even "a prior case [that is] `fundamentally' or `materially' similar to the present case[.]" Baynes v. Cleland, 799 F.3d 600, 613 (6th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 1381, 194 L.Ed.2d 361 (2016). Instead, such a right need only be defined "in a particularized context," such as finding a Fourth Amendment violation when state actors use "excessively forceful or unduly tight handcuffing." Baynes, 799 F.3d at 614. Such a "level of particularity in defining the constitutional right easily meets the standards set out by the Supreme Court[.]" Id.
With regard to the constitutional violations alleged here, the Sixth Circuit, in 2004, held that "[c]reating asphyxiating conditions by putting substantial or significant pressure, such as body weight, on the back of an incapacitated and bound suspect constitutes objectively unreasonable excessive force." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004). Further, it is "clearly established that putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force." Id. at 903. In fact, "[t]he prohibition against placing weight on [a person's] body after [that person is] handcuffed[,]" even if not in a prone position, is "clearly established[.]" Martin v. City of Broadview Heights, 712 F.3d 951, 961 (6th Cir. 2013) (emphasis in original) (finding that such prohibition was clearly established at the time of the August 2007 incident in that case).
Based upon the foregoing, the undersigned concludes that, at the time of the May 19, 2012 incident in this case, it was "clearly established" that forcibly restraining an individual in a prone position for a prolonged period of time is unconstitutional.
"The Eighth Amendment's prohibition on cruel and unusual punishment generally provides the basis to assert a § 1983 claim of deliberate indifference to serious medical needs, but where that claim is asserted on behalf of a pre-trial detainee, the Due Process Clause of the Fourteenth Amendment is the proper starting point." Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 539 (6th Cir. 2008) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)). As noted above, Richardson was not a convicted criminal inmate and, therefore, the Eighth Amendment cannot govern the deliberate indifference claims alleged in this case. See supra.
The determination as to whether a state actor acted with deliberate indifference in violation of either the Eighth or Fourteenth Amendment consists of an objective and subjective inquiry. Smith v. Erie Cnty. Sheriff's Dep't, 603 Fed.Appx. 414, 419 (6th Cir. 2015) (citations omitted).
Here, because facts of record — when viewed in a light most favorable to Plaintiff — sufficiently create a dispute of fact as to whether Richardson laid restrained in a predominately prone position for a substantial length of time, i.e., twenty-two minutes, reasonable minds could conclude that Richardson was suffering from an obvious serious medical need. Cf. Jones v. City of Cincinnati, 507 Fed.Appx. 463, 469 (6th Cir. 2012); May v. Twp. of Bloomfield, No. 11-14453, 2013 WL 2319323, at *14 (E.D. Mich. May 28, 2013) (finding the existence of an obvious serious medical need where decedent, "after physically exerting himself in a struggle with... [o]fficers" "was face down on the ground, with his arms handcuffed behind his back, for approximately three minutes").
Further, genuine issues of material fact remain concerning the subjective component of the deliberate indifference claim. Evidence, viewed in a light most favorable to Plaintiff, demonstrates that Richardson continually told those on the scene that he could not breathe. Doc. 92 at PageID 1587. Officer Stumpff agrees that Richardson may have indicated to those on the scene his inability to breathe. Doc. 89 at PageID 1375. Officer Wittman testified that there was cause to be concerned about Richardson's ability to breathe. Doc. 90 at PageID
Section 1983 imposes liability on any "person who, under color of any statute, ordinance, regulation, custom or usage, of any State" subjects another to "the deprivation of any rights, privileges, or immunities secured by the Constitution or laws." 42 U.S.C. § 1983. Local governments — such as municipalities, counties or townships — are considered persons under § 1983, and "may be sued for constitutional deprivations." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, such entities cannot be held liable for the acts of its officials on a respondeat superior theory. Id. at 693, 98 S.Ct. 2018. Instead, an official policy or custom must be the "moving force" behind the alleged constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To demonstrate Monell liability, one must: (1) identify the policy or custom; (2) connect the policy to the governmental entity; and (3) show a particular injury of a constitutional magnitude incurred because of that policy's execution. Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (internal citations omitted).
A governmental entity's "failure to [adequately] train and supervise" employees "about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983[.]'" Shadrick v. Hopkins Cty., Ky., 805 F.3d 724, 737 (6th Cir. 2015) (citations omitted); see also Gregory v. City of Louisville, 444 F.3d 725, 753 (6th Cir. 2006) (stating that "courts recognize a systematic failure to train police officers adequately as custom or policy which can lead to city liability" under § 1983).
To prevail on these claims against a government entity under § 1983, Plaintiff must show training and supervision provided: (1) "is inadequate to the tasks that the officers must perform; (2) that the inadequacy is the result of the [County's] deliberate indifference; and (3) that the inadequacy is closely related to or actually caused the plaintiff's injury." Brown v. Chapman, 814 F.3d 447, 463 (6th Cir. 2016); see also Shadrick, 805 F.3d at 737 (stating that a plaintiff's "burden under § 1983 is to prove that [the entity's] failure to train and supervise its [employees]... amounted `to deliberate indifference to the rights of persons with whom the [employees] come into contact"); Glowka v. Bemis, No. 3:12-CV-345, 2015 WL 8647702, at *5 (S.D. Ohio Dec. 14, 2015). "[E]vidence of a policy of deliberate indifferences" can also be found where a Sheriff's Office fails "to investigate [the] incident and punish the responsible parties." Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989).
Here, with regard to training and supervision, Berg, a corrections expert, testifies that, within the field of corrections, it has long been understood that pinning individuals to the ground in prone restraint for unreasonably long periods of time is dangerous and likely to cause death. Doc. 123-8 at PageID 3636. Berg further testifies that it is necessary to adequately train officers on such policies. Id. The 2009 Ohio Executive Order discussed above prohibited all state systems,
Despite the foregoing and the existence of an actual Jail policy, however, County Defendants — specifically supervising officer Sergeant Lewis — testified that there was "nothing in our training that says we cannot have somebody in a prone position and handcuffed." Doc. 85 at PageID 1238; doc. 90 at PageID 1420 (wherein Defendant Stumpff testified that "I've been through many trainings, and I've never been told not to do that"). In fact, evidence of record suggests that officers are trained to do the opposite, i.e., place people in a prone position with hands cuffed behind their back. Doc. 88 at PageID 1339. Such evidence creates a genuine issue of material fact precluding summary judgment on behalf of the Sheriff in his official capacity. See Martin v. City of Broadview Heights, No. 1:08 CV 2165, 2011 WL 3648103, at *9-10 (N.D. Ohio Aug. 18, 2011), amended, No. 1:08 CV 2165, 2011 WL 5361062 (N.D. Ohio Oct. 31, 2011), and aff'd, 712 F.3d 951 (6th Cir. 2013) (finding an issue of act concerning "deliberate indifference" in a positional asphyxia case where "the City knew, as evidenced by the promulgation of its Policies, that its police officers would use force to restrain and arrest citizens, yet failed to follow accepted professional standards in training its officers of how to properly apply such force").
Further, evidence of record — demonstrating that subsequent investigation into the incident involved no interview of any of the officers involved (doc. 79 at PageID 887), no review of the Jail's policies (doc. 81 at PageID 1053), no use of force investigation (doc. 81 at PageID 1040), and that Sheriff Plummer approved a finding that the Defendant officers provided basic medical care to Richardson (doc. 79-1 at PageID 912) — create an issue of material fact as to whether an adequate and meaningful investigation was conducted. Baker v. Union Twp., Ohio, No. 1:12-CV-112, 2013 WL 4502736, at *24 (S.D. Ohio Aug. 22, 2013), aff'd in part, appeal dismissed in part sub nom. Baker v. Union Twp., 587 Fed.Appx. 229 (6th Cir. 2014).
Based upon the foregoing, the Court finds Plaintiff has presented evidence creating a genuine issue of material fact as to the County's maintenance of a policy permitting the unconstitutional use of prone restraint and its failure to train and supervise concerning the use of such restraint and the high risk of asphyxia that may result from the use of such force. See Martin, 2011 WL 3648103, at *9-10 (finding an issue of act concerning "deliberate indifference" in a positional asphyxia case where "the City knew, as evidenced by the promulgation of its Policies, that its police officers would use force to restrain and arrest citizens, yet failed to follow accepted professional standards in training its officers of how to properly apply such force").
Finally, the County Defendants move for summary judgment on Plaintiff's state law wrongful death claims premised on the County Defendants' alleged assault and battery of Richardson. See doc. 114 at PageID 3450-52. The County Defendants argue that, insofar as Plaintiff asserts an assault and battery claim against Sheriff Plummer in his official capacity, the Sheriff is immune under Ohio Rev. Code § 2744.02. Id. at PageID 3451-52. Plaintiff sets forth no specific argument in opposition to the County's motion in this regard (see doc. 123 at PageID 3573) and, therefore, the Court finds the County Defendants' argument in this regard to be unopposed and such claim abandoned. Brown v. VHS of Michigan, Inc., 545 Fed.Appx. 368, 372 (6th Cir. 2013) (stating that "a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment").
Even assuming, arguendo, that such claim has not been abandoned, summary judgment on the wrongful death claim as asserted against Sheriff Plummer in his official capacity is proper. Under Ohio law, Ohio political subdivisions — such as Montgomery County, Ohio and the MCSO — are entitled to immunity for torts, subject to limited exceptions not applicable here. See Ohio Rev. Code § 2744.02(A)(1) (stating that, subject to specific exceptions not applicable here, "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental[
However, the individual County Defendants — Jackson, Lewis, Johnson, Henning, Beach, Mayes, Marshall, Stumpff, and Wittman — are not entitled to immunity under Ohio Rev. Code § 2744.02. Instead, under Ohio law, employees of political subdivisions are entitled to immunity under Ohio Rev. Code § 2744.03(A)(6) unless "[t]he employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner[.]" While "the threshold for liability" under a recklessness standard "appears to be slightly higher under Ohio law" — as opposed to a federal "deliberate indifference standard" — the Court concludes, based upon the foregoing analysis of Plaintiff's deliberate indifference claim, that a reasonable jury could find recklessness sufficient to overcome employee immunity under Ohio Rev. Code § 2744.03(A)(6)(b). Stefan v. Olson, 497 Fed.Appx. 568, 581 (6th Cir. 2012). Therefore, summary judgment on Plaintiff's state law wrongful death claims asserted against the individual County Defendants is not appropriate.
Based upon the foregoing, the Court
