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June 22, 2005.


The opinion of the court was delivered by: ALGENON MARBLEY, District Judge



This matter comes before the Court on Defendants' Motion for Summary Judgment. Plaintiffs, estate administrator Thomas E. Bing and William Bing's brother, Brian Bing, have sued the City of Whitehall, the City of Whitehall's Police Department ("WPD"), the Special Weapons and Tactics ("SWAT") Team and Crisis Negotiation Unit, Officer Mark Showalter, Detective Randy Snider, Sergeant Alan, Officer Spencer Salyers, Sergeant Trent Martin, Sergeant Kent Brandeberry, Hostage Negotiator Johnny Forbes, Officer Rex Adkins, Detective Johnny Grebb, and John and Jane Doe Police Officers and Police Personnel 1-10. Plaintiffs' First Amended Complaint alleges warrantless entry, excessive force, deadly force, and destruction of property pursuant to 42 U.S.C. §§ 1983, 1986, and 1988. Plaintiffs also allege that the City of Whitehall failed to train adequately and supervise its agents. Finally, Plaintiffs, under Ohio state law, assert claims of wrongful death, consortium, survivorship, and spoliation of evidence. Defendants' Motion for Summary Judgment as to Plaintiffs' 42 U.S.C. § 1986 claims and municipal liability claims is GRANTED. Similarly, the Court finds that Brian Bing's wrongful death claims cannot stand in light of Ohio Revised Code § 2125.02(A)(1). Defendants' Motion for Summary Judgment with regard to Plaintiffs' remaining claims is DENIED.


  Early in the day on October 14, 2002, William Bing, who is now deceased, called Richard Finton, his former work supervisor, friend, and Alcoholics Anonymous sponsor. He told Mr. Finton that he had recently lost his job, had broken up with his girlfriend, and was on a drinking and huffing binge. Neighbors recalled that, throughout the afternoon and early evening, neighborhood teenagers had been taunting Bing.

  Later that day, around 6:30 p.m., the Whitehall Police Department responded to a call from neighbors that some teenagers in the 600 block of Elaine Road were taunting a man and that a gun had been fired into the air.*fn1 Detective Grebb and Officer Salyers were on routine patrol that night and headed to Elaine Road. When they arrived, the teenagers reported that the shot was fired by Bing, who lived down the street, and pointed the police toward Bing's house.

  The officers proceeded to Bing's house to investigate the incident. Plaintiffs characterize Officer Saylers' intentions, at this point, were merely to conduct an interview into the alleged behavior.*fn2 Shortly, other officers arrived and constructed a perimeter around the house. In the meantime, Officer Saylers attempted to make contact with Bing by yelling at him through the kitchen window for approximately twenty-five minutes and asking him, repeatedly, to come out of his house and talk. This tactic, however, was to no avail. Bing refused to leave his house.

  The SWAT team, led by Sergeant Martin, arrived around 8:30 p.m. and participated in the blockade. Plaintiffs assert that the police were aware that Bing was alone in the house, i.e., there was no hostage. At 8:43 p.m., the police "threw" a throw-phone into the house.*fn3 Officer Forbes periodically rang the throw-phone throughout the evening, but never made contact with Bing. At some point after the throw-phone was deployed, Sergeant Martin attempted to breach the front door so that the SWAT team could better ascertain Bing's location inside of the house. When the SWAT team moved toward the front door to breach it, they noticed a bullet hole in its center. The SWAT team removed the screen door entirely and used a battering ram to break down the front door.*fn4 The police officers did not physically enter at this point; instead, they set up certain tools to allow them to see Bing's location more easily.

  At 8:54 p.m., the first round of pepper gas was fired in through the house's front windows. The force of the pepper spray gun was such that it shattered the front windows. At 9:50 p.m., the police fired another round of gas through the house's back windows, shattering those, too. Plaintiffs allege that the police, in total, fired eighteen rounds of pepper gas.

  Between 9:30 p.m. and 10:00 p.m., Mr. Finton arrived and asked the police if he might try and talk to Bing.*fn5 The police agreed to allow Mr. Finton to use one of the cruiser's speakers. Mr. Finton testified, however, that he was not sure whether it was working properly. Mr. Finton yelled, "Hey Bill, it's your friend Richard. Let's talk," but was specifically coached by the police to abstain from referencing Bing's family or drinking. (Finton Dep. at 56-59). Mr. Finton also told the police, when asked, that Bing was unlikely to pass out because Mr. Finton had known him to be able to ingest a large amount of substances and remain awake. At some point, Mr. Finton and the neighbors had conversations about the fact that the police had not contacted any family members, noting that this decision was troublesome.

  At 10:48 p.m., the police pulled the throw phone out of the front of the house and, at 11:05, threw it into the back of the house. Shortly thereafter, Sergeant Brandeberry decided to deploy a flashbang device.*fn6 Detective Grebb threw the flashbang into Bing's bedroom through a window. According to Detective Grebb's testimony, which is contested by Plaintiffs, Detective Grebb made eye contact with Bing, who then appeared to stand up and mumble something, moved out of Detective Grebb's view, and then fired a shot in Detective Grebb's direction. Plaintiffs stress that this "shot" at Detective Grebb is only alleged, noting that the window frame, which contains only a nick from the bullet, does not reveal whether the shot came from inside or outside the house.

  At 11:20 p.m., Sergeant Martin, decided that the SWAT team should enter the house. Officer Dickey, who was holding a shield, led the SWAT team through the south-facing door, and Sergeant Martin, armed with a shotgun, followed. Officers Salyers and Adkins, both of who held handguns, entered next. Plaintiffs allege that, at this point, Detective Grebb threw a second flashbang into the southeast window of Bing's home.*fn7 Plaintiffs note that they do not know what transpired inside the house between Bing and the SWAT team, and are left with only a smattering of facts,*fn8 including Mr. Finton's testimony that he saw four shots fired inside the house and the forensic report stating that a bullet from Sergeant Martin's gun severed Bing's spine and killed him.*fn9 Almost immediately after the SWAT team entered, a fire, caused by the second flashbang, engulfed the home. At approximately 11:30 p.m., the Fire Department arrived, but the police precluded the firemen from entering the home for several minutes. The fire damage was so severe that the house was eventually leveled. At some point following the shooting, the Columbus Police Department investigated the death. The case was presented to a grand jury, but no officer was indicted.


  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 13888-9 (6th Cir. 1993). The non-moving party then must present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993).

  In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The Court also must interpret all reasonable inferences in the non-movant's favor. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see Reeves v. Sanderson Plumbing Products., Inc., 530 U.S. 133, 150 (2000) (stating that the court must draw all reasonable inferences in favor of the nonmoving party and must refrain from making credibility determinations or weighing the evidence). The existence of a mere scintilla of evidence in support of the non-moving party's position will not be sufficient, however; there must be evidence from which the jury reasonably could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (finding summary judgment appropriate when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party").


  The Court first addresses issues of qualified immunity, looking at each of Plaintiffs' Fourth Amendment claims made pursuant to 42 U.S.C. § 1983:*fn10 warrantless entry; deadly force; excessive force; and destruction of property. Then, the Court addresses Plaintiffs' municipal liability claims, state law claims, and Defendants' arguments that some of Plaintiffs' claims are time-barred.

  A. Qualified Immunity

  As a threshold matter, this Court must determine whether the police officers in this case are protected by qualified immunity. According to the doctrine of qualified immunity, "government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity involves the following three-step inquiry: First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (emphasis added) (quotation omitted). If the answer to all three questions is "yes," qualified immunity is not proper.

 Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004).

  The last prong, which requires the Court to determine "whether the plaintiff offered sufficient evidence to indicate that what the [government] official allegedly did was objectively unreasonable in light of the clearly established constitutional rights," has been interpreted to mean that "summary judgment is inappropriate where there are contentious factual disputes over the reasonableness of the use of deadly force." Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). The court explained:
When the legal question . . . is completely dependent upon which view of the facts is accepted by the jury, the District Court cannot grant a defendant police officer immunity from a deadly force claim. This is because the reasonableness of the use of force is the linchpin of the case. If the jury determines the officer shot the suspect without a reasonable belief that he posed a significant threat of death or serious physical injury to the officer or others, then the officer's actions were legally unreasonable under the Fourth Amendment. On the other hand, if the jury believes the officer's version of the facts and finds the officer's conduct was reasonable, then he will be entitled to qualified immunity. Where, as here, the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability. This is especially true considering that the District Court must view the facts in the light most favorable to the ...

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