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Carter v. Colerain Township

March 20, 2007

DAWN CARTER, ET AL., PLAINTIFFS,
v.
COLERAIN TOWNSHIP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: District Judge Susan J. Dlott

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' EXHIBIT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendants' Motion for Summary Judgment (doc. 10) and Motion to Strike Plaintiffs' Exhibit (doc. 30). On March 15, 2005, Plaintiffs Dawn Carter, George Carter, and Calonda Balleau filed suit against Defendants Colerain Township; Colerain Township Trustees Keith N. Corman, Bernard A. Friedley, and Dianna Lynn Rielage; Colerain Chief of Police Steven J. Sarver; and Colerain Township Police Officers Mark Denney, Kevin Sevier, and Justin Hussel.*fn1 (Doc. 1.) Though somewhat unclear, Plaintiffs' complaint appears to assert claims for false arrest, excessive force, conspiracy, and failure to train and/or supervise pursuant to 42 U.S.C. §§ 1983 and 1985. Plaintiffs also assert state law claims for assault, battery, and negligence.

Defendants moved for summary judgment on all of Plaintiffs' claims. (Doc. 10.) Plaintiffs oppose Defendants' motion. (Doc. 24.) For the reasons that follow, the Court GRANTS Defendants' Motion to Strike and GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment.

I. BACKGROUND

On March 15, 2004, Colerain Township Police Officers Mark Denney, Kevin Sevier, and Justin Hussel were dispatched to the house of George Carter and Calonda Balleau*fn2 to investigate a possible domestic dispute. The dispute began when a toilet, sink, and bathtub in a bathroom on the lower level of George Carter's house overflowed.*fn3 (George Carter Dep. 27-28.) George Carter panicked because he had recently installed a new hardwood floor in the kitchen next to the bathroom and did not want the floor to be destroyed. (Id. at 27:16-20.) He asked his wife, Balleau, who was cooking dinner in the kitchen, to get him a mop and bucket. Balleau, in turn, asked Carter's sister, Dawn Carter, to bring the mop. (Id. at 27:12-15.) Seeing this as an indication that Balleau did not appreciate the seriousness of the overflow, George Carter became agitated and began to yell at Balleau. (Id. at 28:17-30:23.)

Complicating matters further was the fact the George Carter suffers from bipolar disorder and had not taken his medicine that day. When he started yelling at her, Balleau threatened to call the police or the paramedics to make him take the medicine. Balleau had successfully used this tactic two or three times in the past. (Balleau Dep. at 20:7-21.) On this occasion, Balleau called 911, but claims she merely asked for a non-emergency number that she could call in the event that a problem developed with her husband. (Id. at 20:22-21:5.) According to George Carter, he grew angrier when Balleau called 911 rather than help him with the toilet. (George Carter Dep. 35:21-36:4.) As a result, while Balleau was on the phone with the 911 operator, George Carter continued to yell at her and eventually knocked the phone out of her hands. (Balleau Dep. at 29:2-31:15; George Carter Dep. 35:21-36:4.)

Though Balleau allegedly told the 911 operator that she did not need assistance, the operator sent out a dispatch, requesting officers to investigate a possible domestic dispute. (See Denney Dep. 31:23-32:7, 32:25-33:4, 36:6-9; Sevier Dep. 11:1-23; Hussel Dep. 15:13-16.) Officers Denney, Sevier, and Hussel responded to the call. They maintain that the dispatcher did not inform them that George Carter was mentally ill. Nor were the officers aware that Dawn Carter suffers from multiple sclerosis. According to the officers, they did not learn of the Carters' respective conditions until after arresting them.

Beginning at the point the officers arrived on the scene, the parties' accounts of the evening diverge. Officers Denney and Sevier arrived first on the scene. Both officers claim that George Carter, who was standing on the porch when they approached, yelled something along the lines of "Yeah, right here, and bring your zappers with you," and then retreated into the house. (Sevier Dep. 29:13-22, 30:19-24; Denney Dep. 34:3-16.) The officers knocked on the door and could hear people yelling inside, but received no response. (Sevier Dep. 31:18-32:15; Denney Dep. 35:9-14.) Officer Denney stated that he saw neighbors standing outside and believed they heard the yelling. (Denney Dep. at 58:19-59:11.)

After the officers had knocked a few times, they cracked the door open, shouted hello, and identified themselves as police officers. (Sevier Dep. 32:13-18; Denney Dep. 35:22-36:1.)

At that point, Balleau appeared and told the officers to come in. (Sevier Dep. 32:19-33:19; Denney Dep. 36:2-5.) When the officers entered the house, George Carter yelled to the officers to get out of his house. (Sevier Dep. 32:19-33:19; Denney Dep. 36:2-5.) Still standing in the entryway, the officers observed George Carter pacing back and forth on the lower level. (Sevier Dep. 36:10-25.)

The officers claim that after they unsuccessfully attempted to calm George Carter down, he suddenly ran up the stairs towards them with his fists clenched, stating that he had just gotten out of prison, was on parole, and was not going back. (See Sevier Dep. 41:1-22; Denney Dep. 42:21-23, 45:7-8.) At that point, Officer Denney drew his taser gun and George Carter stopped and told Officer Denney to go ahead and shoot him. (Sevier Dep. 42:1-16, 44:4-6; Denney Dep. 45:7-8.) Once again, Balleau tried to calm George Carter down, but he continued to act belligerently and retreated to the lower level, out of the officers' sight. (Sevier Dep. 44:6-8, 45:3-7.)

By that time, Officer Hussel had arrived, and he followed Officer Denney down to the lower level to locate George Carter while Officer Sevier stayed with Balleau upstairs to try to ascertain what had caused the dispute. (Id. at 46:5-16; Hussel Dep. 26:1-2.) Upon reaching the lower level, the officers saw both George and Dawn Carter. Officer Denney, with his taser still drawn, told George Carter that he was under arrest and ordered him to turn around and put his hands behind his back. (Denney Dep. 69:13-20.) Refusing to comply, George Carter held his hands in the air and continued to tell Officer Denney to "go on and shoot." (George Carter Dep. 44:2-8.) Dawn Carter then stepped in front of George Carter and told Officer Denney that he was "not going to tase her brother." (Id. at 44:9-10; Dawn Carter Dep. 40:7-10.) Officer Denney advised Dawn Carter that he would arrest her for obstruction of official business if she did not move. (Dawn Carter Dep. 41:24-42:6.)

Dawn Carter refused to move, and according to Officer Denney, George Carter backed up against the wall and squared off in a fighting stance toward him. (Denney Dep. 72:5-9, 123:18-19.) Believing that to be a threat, Officer Denney stepped around Dawn Carter and stunned George Carter by placing the taser up to his neck.*fn4 (George Carter Dep. 51:15-17, 53:20-23; Denney Dep. 71:17-72:9; Hussel De. 48:6-49:17.) George Carter fell to the ground and while Officer Denney tried to secure him, Dawn Carter started kicking and flailing her arms, striking Officer Denney in the head. (Denney Dep. 71:3-12.) Officer Denney then stunned Dawn Carter by touching the taser gun to her groin area. (Id. at 128:19-129:24.) Defendants maintain that Officer Denney only stunned Dawn Carter one time without using a taser cartridge. This assertion is supported by Officer Denney's taser addendum, which shows his taser being fired only twice on the night in question.*fn5 (Grayson Dep. 95:23-24; Rose Aff. ¶ 17, ex. 4.)

Dawn Carter began to hyperventilate after being tased. (Hussel Dep. 149:18-24.) While Officers Denney and Hussel tried to calm her down, Officer Sevier placed George Carter into handcuffs and walked him outside to Officer Hussel's patrol car. (Sevier Dep. 50:13-23; Hussel Dep. 138:7-11.) Dawn Carter was then transported to Jewish Hospital. (See Sevier Dep. 128:20-129:1.)

As indicated above, Plaintiffs' account of the evening differs with regard to several significant points. First, Plaintiffs deny that George Carter told Officers Denney and Sevier to bring their "zappers" with them when they arrived on the scene. According to George Carter, the only thing he said to the officers when he saw them outside of his house was "I hope you all brought some plungers." (George Carter Dep. 31:16-19.) Plaintiffs further claim that Officers Denney and Sevier entered the house without permission and then were asked to leave. However, to the extent the officers had permission to be in the house, Balleau admitted during her deposition that when the officers arrived she waved them in, thus consenting to their entrance. (Balleau Dep. 32:23-33:2, 33:18-25.) George Carter testified that once the officers were inside he repeatedly told them to get out of his house, but there is no testimony from Balleau that she told the officers to leave. (George Carter Dep. 36:9-22.) George Carter additionally denies charging up the stairs towards Officers Denney and Sevier, testifying instead that Officer Denney walked down the stairs with his taser drawn while Carter and Balleau were still arguing and confronted him on the lower level of the house. (George Carter Dep. 39-40; Balleau Dep. 22:8-22.)

Plaintiffs' account of the interaction between Officer Denney and George Carter just prior to the point when Officer Denney stunned George Carter does not substantially differ from Defendants' account. With regard to Dawn Carter, Plaintiffs claim that Officer Denney stunned her repeatedly on several places on her body while Defendants maintain Officer Denney stunned her only once. Plaintiffs specifically allege that Officer Denney stunned Dawn Carter multiple times without a cartridge, by pressing the taser gun against her vaginal area, arms, breasts, stomach and neck.*fn6 Then, Plaintiffs allege, Officer Denney stepped back and shot her with a taser cartridge. (Dawn Carter Dep. 47:10-17, 50:2-24; George carter Dep. 54:16-55:16, 57:5-19, 58:3-59:11). Dawn Carter claims that the shock aggravated her multiple sclerosis and caused her to have an "episode" or an "attack" that was characterized by pain and shaking. (Dawn Carter Dep. 48:8-18, 49:2-14.)

Balleau, who had apparently been watching the whole event, felt that Dawn Carter needed medical attention and wanted the officers to send her to Jewish Hospital. According to her, the officers had already handcuffed and intended to arrest Dawn Carter, but she called 911 and finally got connected to Sergeant Grayson, who told the responding officers to send Dawn Carter to the hospital. (Balleau Dep. 24:5-24.)

The officers ultimately arrested George Carter for disorderly conduct and resisting arrest and charged Dawn Carter with obstructing official business and resisting arrest. All charges against George and Dawn Carter were eventually dismissed. Plaintiffs subsequently filed the instant lawsuit.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The moving party may support the motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmoving party "must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The task of the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. A genuine issue for trial exists when the evidence is not "so one-sided that one party must prevail as a matter of law." Id. at 252.

In reviewing the evidence set forth by both the moving and non-moving parties, the Court must carefully review "those portions of the submitted evidence designated by" both parties. Guarino v. Brookfield Twp. Tr's., 980 F.2d 399, 410 (6th Cir. 1992) (emphasis added).

However, the Court will not "sua sponte comb the record from the partisan perspective of an advocate for the non-moving [or moving] party." Id.

III. ANALYSIS

A. Motion to Strike

As an initial matter, Defendants move to strike Exhibit 1 to Plaintiffs' Response to Defendants' Motion for Summary Judgment, the journal entries from the Hamilton County, Ohio Municipal Court proceedings against George and Dawn Carter. Plaintiffs have not responded to Defendants' motion, and the time for doing so has long since passed. Accordingly, as Plaintiffs apparently are not in opposition, the Court grants Defendants' motion and strikes the Hamilton County journal entries. See S.D. Ohio Civ. R. 7.2(a)(2) ("Failure to file a memorandum in opposition may be cause for the Court to grant any Motion, other than one which would result directly in entry of final judgment or an award of attorney fees."); U.S. v. One Parcel Prop. Located at 3504 and 3506 Old Hydes Ferry Pike, Nashville, Davidson County, ...


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