ALGENON L. MARBLEY, District Judge.
Before the Court is Plaintiff Richard Bonnette's ("Plaintiff") February 10, 2016 Motion for Default Judgment. (Doc 14.) The Clerk entered default as to Defendants the City of Mount Vernon, and Mount Vernon Police personnel Sergeant Fred Gerber and Officer David McElroy (collectively, the "officers") on February 8, 2016. (Doc. 13.) Plaintiff filed this action alleging various causes of action, including violations of 42 U.S.C. § 1983 by all Defendants. (Compl., Doc. 1 at 5-9.)
The docket indicates that Plaintiff served Defendants by personal service on December 21, 2015. (Docs. 7-9.) Defendants' answer to that service was due on January 11, 2016. (Id.) None of the Defendants or any representative thereof has answered Plaintiff's Complaint or otherwise appeared before or petitioned the Court.
On March 24, 2016, the Court held a hearing on Plaintiff's Motion for Default Judgment. Counsel for Plaintiff submitted uncontroverted evidence supporting Plaintiff's claims, including a declaration of Plaintiff, and photographic and other documentary evidence (attached).
For good cause shown, the Court finds Defendants the City of Mount Vernon, Fred Gerber, and David McElroy in default to the causes of action set forth in Plaintiff's Complaint. Based on the pleadings, statements, and submissions of Plaintiff and Plaintiff's counsel, the Court finds as follows:
It was a sunny day on June 30, 2014, the temperature 80-83 degrees Fahrenheit. (Damages Hr'g Tr. at 3) (attached). Plaintiff was at his home with his children and a representative of children and family services who was there to determine whether Plaintiff's two sons should go to his ex-wife's house. (Id.) At some point between 1 and 2 pm, Defendant officers arrived on the scene. (Doc. 1 ¶8; Tr. at 3-4.) Defendants told Plaintiff he was under arrest and then ordered Plaintiff to place his hands on the hood of a black Buick that had been running for about 30 minutes. (Doc. 1, ¶9.) Plaintiff cried out in pain as the hot metal burned his flesh. (Id., ¶1.) Despite Plaintiff's agony, the officers physically forced him to keep his hands on the hot metal hood. (Id.) Plaintiff is a diabetic and a below-the-knee amputee. (Id. ¶10.) Plaintiff informed the officers of as much and indicated to them that because of his disability he posed no risk of flight. (Id. ¶10.) Plaintiff also weighed approximately 320 pounds at the time. (Tr. at 4.)
Despite knowing that Plaintiff posed minimal risk of flight, the officers refused to allow Plaintiff to move his hands. (Doc. 1, ¶10.) Due to the metal's extreme heat, Plaintiff's palms were eventually seared and their skin fused to the hood. (Id.) Plaintiff's hands were fused such that Plaintiff could not simply pull them back. (Tr. at 5.) Plaintiff had to throw his weight to rip his hands off of the searing-hot hood, with the skin from his hands remaining on the hood of the car. (Id. at 5, 10.) In doing so, Plaintiff fell to the ground. Inexplicably and unprovoked, the officers then physically attacked Plaintiff, striking him repeatedly with their batons. (Doc. 1, ¶¶1, 11.) Officer McElroy broke Plaintiff's nose, and Sergeant Gerber fractured Plaintiff's ribs. (Id. ¶11.) Sergeant Gerber put his knee on Plaintiff's head while Officer McElroy repeatedly punched Plaintiff's face. (Tr. at 5.) At all times the Defendant officers had no reason to believe that Plaintiff was uncompliant, under the influence of any intoxicant, or armed. (Doc. 1, ¶8.) Plaintiff's children, aged 1, 3, 9, and 11 all witnessed this violent scene. (Tr. at 5.)
Plaintiff was taken to Knox Community Hospital for his injuries where he was diagnosed with burns to his hands and abdomen. (Tr. at 4.) The EMS notes describe Plaintiff's bloody nose, facial deformity, and golf-ball sized burns on both of his hands. (Id. at 6.) EMS notes also indicate that Plaintiff remained calm and cooperative at all times while under their care. (Id.) Plaintiff was ultimately diagnosed with abdominal wall burns, a nose fracture, burns in the second and third degree on his hands, periorbital (eye-socket bone) contusions, a left rib fracture, and sprain of his right shoulder. (Id.)
As a result of the officers' actions, Plaintiff has suffered physical and emotional injuries, along with other economic and non-economic losses. Plaintiff's medical treatment consisted of ointment and bandages for his hands, and over-the-counter drugs to alleviate his physical pain. (Id.at 7.) According to documents from the Department of Justice, Plaintiff's out-of-pocket medical costs related to the incident amount to $3,702.61. (Id. at 9.) Beyond out-of-pocket costs, Plaintiff's injuries prevented him from fully taking care of his three-year-old daughter Gabriella and one-year-old daughter Josilyn. (Id. at 7-8.) Plaintiff could not even, for example, pick them up to hold them due to the burns on the palms of his hands and the pain from his broken rib. (Id. at 7-8.) Plaintiff still has a scar on his stomach that has not changed in the past year. (Tr. at 5.) Plaintiff's lasting scars are not merely physical—Plaintiff still experiences anguish upon hearing his three eldest children mention their witnessing the violence he suffered. (Id. at 12.)
Based on the uncontroverted allegations of the Complaint and the evidence adduced at the hearing on Plaintiff's Motion, the Court finds that the City of Mount Vernon fails to hire, train, and/or supervise its employees adequately in violation of 42 U.S.C. § 1983. This includes failing to screen out persons unfit for police duty before hiring them to join the police force, and failing to train them adequately once joined. The Court further finds that the actions of the Defendant officers during the arrest were outrageous, well beyond the scope of decency, and shocking to the Court's conscience, also in violation of 42 U.S.C. § 1983. The Court finds that the foregoing are the direct and proximate cause of Plaintiff's injuries, including out-of-pocket medical costs and pain and suffering.
Based on the foregoing, it is hereby
I, Richard J. Bonnette, declare and state the following:
THE DEPUTY CLERK: 215CV2463, Richard Bonnette versus the city of Mount Vernon.
THE COURT: Would counsel please identify himself for the record.
MR. CRISTALLO: Paul J. Cristallo, C-R-I-S-T-A-L-L-O.
THE COURT: Mr. Cristallo, for the record, is your client Mr. Richard Bonnette here?
MR. CRISTALLO: Mr. Bonnette is here, yes, Your Honor.
THE COURT: It's pronounced Bonnette. You tell me. I have no idea how it's pronounced.
MR. CRISTALLO: Bonnette.
THE COURT: The record will reflect Mr. Bonnette is here.
The record will also reflect that there is no counsel — that no one representing the defendant — the defendants has appeared but that's consistent with how the defendant city Mount Vernon and Mount Vernon police personnel Sergeant Fred Gerber and officer David McElroy have handled this case.
The record will reflect further that the clerk has entered a default as to the defendants city of Mount Vernon, and defendants Mount Vernon police personnel Sergeant Gerber and officer McElroy, and that said default was entered by the clerk of the United States district court for the Southern District of Ohio on February 8th, 2016. The docket reflects that the plaintiff served the defendants by personal service on December 21, 2015. The defendant's answer to that service was due on January 11, 2016, and none of the defendants for any representative of said defendants has answered or otherwise pleaded or appeared before or petitioned this court.
We're here today on the plaintiff's motion for default judgment and a hearing pursuant to federal rule of civil procedure 55B2.
So are you ready to proceed, counsel?
MR. CRISTALLO: Yes, Your Honor.
THE COURT: Please proceed.
MR. CRISTALLO: Good afternoon, Your Honor.
THE COURT: Good afternoon.
MR. CRISTALLO: I guess let me begin by saying that I haven't been in this situation before in terms of having a default judgment in any court, let alone against a municipality in a civil rights case.
And so I was just going to, if it pleases the Court, we've submitted a declaration of Mr. Bonnette and it has various exhibits. I was just going to run through these — kind of run through the declaration.
THE COURT: Please.
MR. CRISTALLO: Okay. As indicated, Your Honor, on June 30th, 2014, Mr. Bonnette was at his home. He wasn't under the influence of drugs or alcohol. He was there with I believe a representative of children and family services. It was not a violent or, you know, any kind of a situation necessarily that had heightened tempers. The police were called and Mr. Bonnette can explain, if you wish, but basically there was a question about whether or not Mr. Bonnette's two sons should go to his ex-wife's boyfriend's house. And so the Mount Vernon police arrived and Mr. Bonnette was there, as was his wife's black Buick which had been running. As indicated in his declaration, the weather was warm that day between 80 degrees and 83 degrees Fahrenheit at the time of his arrest. The sun was shining.
And I — Your Honor, I pulled offline a copy of a weather — from a weather almanac Web site. I don't know to the degree the Court wants to see that or take judicial notice of —
THE COURT: Is it a part of the declaration?
MR. CRISTALLO: It is not.
THE COURT: What does the — what does it demonstrate?
MR. CRISTALLO: It basically supports Mr. Bonnette's assertion that the temperature was anywhere between 80 and 83-degrees that day and sunny.
THE COURT: All right. And what time was this that the — what time was this that the police arrived at his residence?
MR. CRISTALLO: I believe it was between one and two o'clock.
THE DEPUTY CLERK: Yes, sir.
THE COURT: All right.
MR. CRISTALLO: Mr. Bonnette was wearing shorts and he is a — he has had his leg amputated, his left leg amputated from the knee down. He was not wearing a prosthetic that could be mistaken for an actual leg. It's kind of a post below the knee. He has it today.
THE COURT: All right.
MR. CRISTALLO: At the time he was 320 pounds. And I'm mentioning this only to kind of give the Court a — the background information relevant to the fact that from our perspective, at least, he wasn't the greatest threat in terms of fleeing or anything of that nature. Mr. Bonnette was told that he was being placed under arrest and turned around to face the black Buick. In going to put his hands on the car, it was was very hot. He said words to the effect that he can't put his hands on this car. And he was grabbed by officers McElroy and Gerber of the Mount Vernon police, and they forced his hands onto the hood of the car.
The injuries that Mr. Bonnette sustained to his right and left hand are reflected in Plaintiff's Exhibit A and B attached to his declaration. He also sustained what one of the records indicates is a first degree burn to his stomach, to his abdomen. Plaintiff's Exhibit C is a recent photo that I actually took of the scar on his stomach that is still there. According to Mr. Bonnette's declaration, that scar has not changed in the past year.
Mr. Bonnette's hands seared to the hood of the — to the hood of the black Buick such that he could not stand the pain but he could not also easily remove his hands. So what he did was he threw his weight so that he could pull his hands off of the hood. At which point, he fell to the ground and was tackled. He was jump on by officers McElroy and Gerber. Officer Gerber put his knee on his head and on his chest. Officer McElroy repeatedly punched him in the face. The injuries sustained to Mr. Bonnette's face can be seen to some degree in Plaintiff's Exhibit D. I believe all of these photos except for the stomach scar were taken about three days after the event.
MR. BONNETTE: That is correct.
MR. CRISTALLO: And so all of this took place in front of Mr. — in front of Bonnette's children, Richard Jr., age 11, James Jr. age nine, Gabriella age three. His daughter Josilyn was there also. She was age one, but we have no reason to believe that she has any memory of this.
Mr. Bonnette also indicated in his declaration he screamed out that they were burning — that his hands were burning. The officers didn't lift his hands off the car or do anything to assist. And so when the Mount Vernon EMS showed up, Mr. Bonnette was handcuffed, bleeding from the nose. He was sitting in a seated position, I believe on the ground. His face was obviously — even in the EMS notes when they showed up they could tell he had facial deformity in addition to the fact his nose was bleeding. They described golf ball sized burns on both of his hands.
The Mount Vernon EMS notes that Mr. Bonnette remained calm and cooperative throughout. Mr. Bonnette was taken to the next county emergency where he received treatment and x-rays.
Exhibit F are true and accurate copies of his emergency records. On July 8th, Mr. Bonnette had follow up treatment with Dr. Ron Martinson of Mount Vernon hospital.
He was diagnosed with an abdominal wall burns, a nose fracture, burns of second and third degree, periorbital contusions, a closed left rib fracture and sprain of his right shoulder and hypertension. Those records are attached to Mr. Bonnette's declaration.
We recently retained full copies of his Knox County records. We recently retained full copies of Mr. Bonnette's Knox County hospital records and the x-rays. In fact, they, if you look at Dr. Martinson's records, they differ a little bit.
THE COURT: Are Dr. Martinson's records found in Plaintiff's Exhibit F?
MR. CRISTALLO: I believe Dr. Martinson's are Exhibit
G. And regarding Plaintiff's Exhibit G
THE COURT: Yes. All right.
MR. CRISTALLO: And so you can see on the forth
THE COURT: Who took him to the hospital?
MR. CRISTALLO: Mount Vernon fire and EMS.
THE COURT: Okay.
MR. CRISTALLO: And so you can see the diagnoses from
Dr. Martinson who is Mr. Bonnette's treating physician where he's told that he had a nose fracture and these other — and these other injuries that we've already mentioned. But the emergency, in full disclosure, Your Honor, the x-rays records we received from the hospital indicate that the nose fracture may in fact be an old fracture. So in fact it may not have been a fracture after all. The rib, however, was still diagnosed, I believe at least as highly suspicious for a hair line fracture of his sixth left rib.
Mr. Bonnette received treatment, his follow-up treatment consisted of ointment and bandages for his hands. He went and got over the counter Aleve and other medications to help with the pain. It talks — paragraphs 36 through 38 talk about how long some of these injuries lasted. He — like I said, he still has the burn scar on his stomach. Part of the problem with having the second degree burns on his hands was that it made caring for his daughter Gabriella who was three at the time and when he had his daughter Josilyn made care for her very difficult, no picking them up, not only because of the burns on his hands but because the rib pain is actually what caused him the most discomfort. And so caring for his kids, car seats, things like that were made very difficult, not picking up his kids, of course that was an emotionally difficult aspect to this.
He — I should add about Defendant's Exhibit G which is Dr. Martinson's record, there are family history records there and his medications and other indicia of unrelated medical problems that I've redacted. I have a copy of an unredacted Exhibit G, but because this was going to be made a public record, I felt that it would be best to redact it. If the Court wishes an unredacted copy, I have that.
THE COURT: I don't need the unredacted copy.
MR. CRISTALLO: Mr. Bonnette had the one follow up with Dr. Martinson and I think that's mainly because there wasn't really any treatment or casting of his fractured rib, the sprain to the shoulder, the left forearm swelling, the orbital bruises, they were all going to heal with time.
The wounds on his hands, he treated like I said with ointment and bandages until they essentially went away.
And so his medical bills, Mr. Bonnette is a Medicaid, Medicare recipient and I believe on Social Security disability, and we requested records from the Department of Justice which found that his medical bills related to this incident were $3,702.61. I have a document from the Department of Justice
THE COURT: His medical bill was how much.
MR. CRISTALLO: For this incident, $3,702.61. And I have a document from the Department of Justice that is not attached to his declaration, I can represent we retained by requesting this information from the Department of Justice.
It's a true and accurate copy and so I can submit that bill, if you wish as well.
THE COURT: You said the bill came from the Department of Justice?
MR. CRISTALLO: Because I have all of bills from Knox County. And so I can submit the entire bill packet that they sent me.
But it includes — the bills that they sent me from records deposition service that I go got from the hospital and
Dr. Martinson, it's this universe, it includes a lot of things after this, a little bit before this, and so —
THE COURT: Are they all relating to the injuries he sustained in this incident?
MR. CRISTALLO: The bill the packet of bills that I have from the hospital reflect beyond that scope. And so the bills that are related to this incident that he got from Knox County are really best reflected by the Department of Justice, when we asked —
THE COURT: In all total, his medical bills from this incident are $3,702.61?
MR. CRISTALLO: Yes, Your Honor.
THE COURT: All right.
MR. CRISTALLO: I mean, he had some minor out of pocket, but — drug store stuff, but I don't have receipts or anything for that. So yes, the bill is $3,702.61.
About I guess about the bills, I was surprised at the number because it seems — it seems incredibly low. And I'm not sure because this was a Medicare, Medicaid billing or how that worked. But the impact — and the injuries just when you look at the pictures, when you think about what happened here and the injuries, Mr. Bonnette certainly didn't overtreat. believe that the case — his damages aren't accurately reflected by what the medical bills related to this incident are.
This — Mr. Bonnette's skin was left on the hood of the car. When you look at Exhibit's A and B, there's skin missing and that's because it was left on the hood of the Buick. It seems inconceivable on some level that police officers would force Mr. Bonnette to hold his hands on the hood of the car and he screams out that he's burning. And when he throws himself off of it, the notion that they are then going to get on top of him and beat him so that he sustains further injuries is somewhat inconceivable.
I've been doing civil rights for a long time on both defense and plaintiffs, and so this one, I felt, was — this one, it just seems to me to strike a particularly vicious cord, almost. I, years ago, worked for the city of Cleveland doing civil rights initially I was doing civil rights defense work, and I was — I was involved in a case by the name of Krokey, K-R-O-K-E-Y, versus city of Cleveland. And I can give you the citation for that. It's 146 Ohio App.3d 179, Eighth Appealant District. Even though I had long left the city of Cleveland at the time the case was tried, originally this was my case. It involved a young man, teenager, who unknown police officers had forced him to keep his hands on the hood of a hot police car where he will also sustained second and third degree burns to the palms of his hand. Similar to Mr. Bonnette there was not a lost wage claim, and the jury awarded — Mr. Krokey was a minor, so technically his mother, $50,000 in compensatory damages for pain and suffering and unknown medical bills on top of the 50,000.
This case, Krokey, was later overturned on the basis that the court allowed the trial to proceed against the city of Cleveland only in that the plaintiff couldn't identify the badge numbers or names of any of the officers who had forced his hands onto the car.
So the common pleas court, I think, incorrectly but maybe understandably allowed the case to go forward what would essentially be a respondeat superior theory. And that was an error. The case was ultimately overturned, but it didn't have anything to do with the jury's award. I guess I'm pointing to Krokey — and I have an extra copy or extra copies. I'm pointing to Krokey because it seems like it's a relatively good indication of what the value —
THE COURT: What was your prayer for relief in the complaint?
MR. CRISTALLO: I'm not sure off the top of my head.
It may have been a jurisdictional amount.
THE COURT: It says in excess of 25,000.
MR. CRISTALLO: think that the rules in fact have gotten
THE COURT: Changed.
MR. CRISTALLO: Yes. The declaration —
Mr. Bonnette's declaration talks about the difficulty that he had to endure, the only the physical aspect of this obviously which was the most painful thing he's ever been through and the trauma associated with it. But his children, the three older children all remember this happening. And one of the things that it has occurred to me, and of course in representing and dealing with Mr. Bonnette over the course of the time we've been together, is that this is the kind of thing that will stick with you, as it could. This is not something that I think they are going to easily forget and that, in and of itself, is very troublesome to Mr. Bonnette.
The notion that his children witnessed their father being abused and burned by the police is one of those memories that you just would do anything to prevent your children from having. So the notion that his children occasionally will mention this or bring this up, he has found to be one of the particularly awful aspects of what happened to him on that day.
I am trying to think if I have forgotten anything. Your Honor, if you could give me just one moment.
THE COURT: Yes.
MR. CRISTALLO: May I confer with Mr. Bonnette for one moment?
THE COURT: Yes, you may.
MR. CRISTALLO: Your Honor, based on all of the evidence that's been presented before you, as well as the Krokey case and the bills which I'd like to submit and the record from the Department of Justice, I think in this case we're asking for an award of $60,000 as fair compensation for Mr. Bonnette.
THE COURT: Okay. Does that include your attorney fees?
MR. CRISTALLO: Your Honor —
THE COURT: Because you would be the prevailing party.
This case is brought under section 1983, isn't it?
MR. CRISTALLO: It is.
THE COURT: Okay.
MR. CRISTALLO: Your Honor, I have not calculated my attorney's fees and Mr. Bonnette and I haven't discussed that yet. And I didn't know how long today might take, so I'd like to maybe defer, I guess on that.
THE COURT: All right. How much time do you need to submit your motion for fees?
MR. CRISTALLO: Well, Your Honor, I guess I want to be clear. I wasn't positive I was going to submit a fee petition, but if I were to, a week, I guess?
THE COURT: All right and your request is for $60,000?
MR. CRISTALLO: Yes, Your Honor.
THE COURT: The Court finds as follows: That the defendant, city of Mount Vernon and Mount Vernon personnel Sergeant Fred Gerber and Officer David McElroy are in default, and I hereby enter judgment against them in the amount of $60,000 jointly and severally. The Court will give counsel until April 1st to submit your petition for fees as the prevailing party. That's the amount of time that you'll need.
I won't require a hearing on it, but I will require that the petition be detailed and use the load star method to calculate your fees. I will award judgment for Mr. Bonnette in the amount of $60,000. And that's $60,000 to him. That doesn't include your fees, of course, counsel. Are there any other matters that we need it take up at this time?
MR. CRISTALLO: Your Honor, only that I'd like to submit the — if I could, the Department of Justice calculation —
THE COURT: Those and the bills will be received.
MR. CRISTALLO: Okay. Thank you, Your Honor. You may give them to Mr. Harris, please.
THE COURT: The Department of Justice fees will be document will be Plaintiff's Exhibit number your last H — so that will be Exhibit I. And the hospital records will be J — will be Plaintiff's Exhibit J. Is there anything further?
MR. CRISTALLO: No, Your Honor
THE COURT: All right. Mr. Harris, you may adjourn court.
