The opinion of the court was delivered by: Judge Graham
This matter is before the Court on Defendants', Mark Perkins ("Perkins"), Travis Tharp ("Tharp") and the City of Mount Vernon, Ohio ("Mount Vernon") (collectively "Defendants"), Motion for Summary Judgment (Doc. 30). Plaintiff Thomas Burr ("Burr") seeks to recover damages under: 1) 42 U.S.C. § 1983 for alleged violations of his Fourth Amendment rights and 2) Ohio law for assault, battery, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and defamation resulting from his arrest by Mount Vernon police officers Perkins and Tharp during the early morning of May 16, 2004.
In his Complaint, Burr alleged Defendants violated his Fourth, Eighth, and Fourteenth Amendment rights and were liable for those violations under 42 U.S.C. § 1983 (Doc. 1). Burr also alleged that Perkins and Tharp conspired to deny him equal protection of the law under 42 U.S.C. § 1985. Burr claimed Defendants violated his rights under the Constitution of the State of Ohio and committed the following torts: assault, battery, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and intentional and/or negligent defamation. Burr sought joint and several compensatory damages, punitive damages, interest, costs, and fees from Defendants.
On February 3, 2006, this Court dismissed Burr's Eighth and Fourteenth amendment claims, the Section 1985 claim, the Ohio constitutional claim, the negligent defamation claim, all other tort claims against Mount Vernon, and the request for punitive damages against Mount Vernon (Doc. 29). Accordingly, Burr's Fourth Amendment claims against all Defendants and his state law claims, save for the negligent defamation claim, against Perkins and Tharp remain. For the reasons that follow, Defendants' motion is granted in part and denied in part.
Under Fed. R. Civ. P. 56(c), summary judgment is proper "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." See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction & Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992)(per curium).
The moving party has the burden of showing that there are no genuine issues of material fact in the case. LaPointe, 8 F.3d at 378. The moving party may meet its burden by showing that the nonmoving party lacks evidence to support an essential element of its case. Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).
In response, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). The Court must view the evidence, all facts, and any inferences that may permissibly be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992).
In reviewing summary judgment motions, "this Court must determine whether 'the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993)(quoting Anderson, 477 U.S. at 251-52). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original); see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989).
Thus, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. See also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994).
Finally, a district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
The following facts are undisputed by the parties. Officers Perkins and Tharp, along with other officers, were dispatched to the Follin Avenue Apartments in Mount Vernon, Ohio, following a 911 call. Around 1:00 a.m. the caller reported a disturbance involving ten to fifteen people at the apartments which may have involved knives or guns.*fn1 Tharp was the first to arrive on the scene, and the other officers, including Perkins, arrived shortly thereafter. When Officers Monroe, Burns, and Marti*fn2 arrived, they began dealing with the crowd.
Tharp began questioning Jayson Hood ("Hood"), a resident of the Follin Avenue Apartments and a friend of Burr's, because he was "the most disorderly, [and] intoxicated." (Mot. for Summ. J. Ex. A, Trial Tr., 59, June 24-25, 2004 ("Ex. A").) When Tharp arrived, people "scattered" from the parking lot. (Id. at 60.) Hood wanted to go back to his apartment, but Tharp insisted that he stay to answer questions. Hood was apparently "defensive" (Doc. 37).
(Affidavit of Thomas Burr ("Burr Aff.") ¶ 11.)
Tharp continued questioning Hood in the parking lot in the vicinity of another officer,*fn3 when Burr approached the area stating, "hey man, he's [Hood's] cool, he's [Hood's] a good guy, it's cool," or words of similar effect. Burr was advised to back away from the questioning. After the instruction to back away from the questioning, Burr and Perkins made contact. Perkins took Burr to the ground. Perkins, Tharp, and Monroe handcuffed and arrested Burr after transporting him to the hood of a nearby parked car. Burr's nose was bleeding.
Burr was charged with, and acquitted of, obstructing official business and resisting arrest under the Mount Vernon Municipal Code. The parties' versions of the facts as to how Burr was arrested, however, starkly differ.
B. Burr's Version of the Arrest
Burr claims he approached Tharp and Hood because knew Hood had previous negative experiences with police officers and was trying to "help them both deal with each other." (Burr Aff. ¶ 13.) Burr alleges that Tharp told him to back away from the area, which he tried to do immediately, but accidentally bumped into Perkins. Burr was "backpedaling" to comply with Tharp's instructions and did not realize Perkins was behind him. When Burr turned around to see into whom he bumped, he recognized Perkins from a "previous encounter years before." (Id. at ¶ 19.) Burr then raised his hands in front of him with his palms open and said something like, "I don't want any trouble."
Nevertheless, Burr alleges, Tharp grabbed one of his wrists from behind. As Burr turned away from Perkins to face Tharp, Perkins grabbed Burr from behind in a bear-hug by his neck, "leg-whipped" him, and the officers together took Burr face down onto the cement with Perkins on top of Burr. As a result, Burr bloodied his nose and hit his forehead. While he was on the ground, many officers were on top of him. One of the officers jerked his arm from underneath him and handcuffed it.
Then the officers picked Burr up horizontally and slammed him onto the front hood of an adjacent car with such force that blood from his nose spattered onto the car. Next, Burr alleges the officers "applied great force to [his] back, head, and shoulders, forcing the air from my lungs, which caused me to fear suffocation," and that he "gasped for air as [his] blood flowed down the inside of [his] throat," while Perkins put his thumb in Burr's windpipe. (Burr Aff. ¶¶ 32-33.)
C. Defendants' Version of the Arrest
Defendants maintain that Perkins was assisting Tharp with Hood's questioning. During the questioning, Burr approached the trio, specifically Perkins--arms rigid, fists clenched, chest-to-chest--and told him Hood was cool and a good guy. Perkins repeatedly told Burr to back away from the questioning of Hood, but he did not, and instead continued his "barrage." (Ex. A 13.) Perkins noticed Burr smelled strongly of alcohol, had glassy eyes, and generally appeared to be intoxicated, and that the officers had their "hands full," because at this point there were about twenty people standing in the parking lot that may have been in the fight to which they were dispatched. (Id.)
After repeatedly telling Burr to back up, Perkins pushed Burr or "checked" him in the chest to get him to back up and out of the officers' space. (Id. at 14.) Burr then came back screaming at Perkins, sticking out his chest and purposefully checked Perkins. Perkins told Burr he was under arrest and ordered him to place his hands on the hood of an adjacent car, which Burr refused to do and instead began to pull away.
Perkins "leg-swept" Burr and placed him on his back on the ground. Perkins told Burr to roll over, but Burr refused. Perkins threatened to spray Burr with mace or pepper spray, and Burr still did not comply with the instruction to roll over. Burr flexed his arms and was kicking at the officers, making it impossible to be handcuffed. Perkins, Tharp, and Monroe then picked Burr up off of the ground and carried him to a nearby car. Perkins told Burr to put his hands on the hood of the car, so that the officers could handcuff him. Burr resisted and refused to do so. The officers finally handcuffed Burr while he was on the hood of the car. Neither Perkins nor Tharp saw Burr hit his nose or forehead on the concrete or on the car, but both acknowledge that his nose was bleeding after the "scuffle." (Id. at 19.)
II. Burr's Section 1983 Claims Against Perkins and Tharp
A careful reading of Burr's Complaint shows he asserts claims against Perkins and Tharp for violations of his Fourth Amendment rights due to: 1) his arrest without probable cause; 2) excessive force used during his arrest; and 3) malicious ...