Nancy Roell, as executrix of the estate of Gary L. Roell, Sr., Plaintiff-Appellant,
Hamilton County, Ohio/Hamilton County Board of County Commissioners; Jim Neil, in his official capacity as the Hamilton County Sheriff; Joseph Huddleston, Matthew Alexander, and Willy Dalid, individually and in their official capacities as employees of Hamilton County, Defendants-Appellees.
Argued: June 13, 2017
from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:14-cv-00637-Sandra S.
Beckwith, District Judge.
Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA,
Cincinnati, Ohio, for Appellant.
Sears, HAMILTON COUNTY PROSECUTOR'S OFFICE, Cincinnati,
Ohio, for Appellees.
Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA,
Cincinnati, Ohio, for Appellant.
Sears, Jerome A. Kunkel, HAMILTON COUNTY PROSECUTOR'S
OFFICE, Cincinnati, Ohio, George D. Jonson, Linda L. Woeber,
MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio, for
Before: MOORE, GILMAN, and COOK, Circuit Judges.
LEE GILMAN, Circuit Judge.
Roell, who suffered from chronic mental illness, caused a
disturbance at his neighbor's condominium while
experiencing a condition known as excited delirium. Hamilton
County sheriff's deputies arrived to find Roell
half-naked, muttering unintelligibly, and standing next to a
broken window holding a hose and the remnants of a hanging
plant. While attempting to subdue Roell, the deputies
physically struggled with him and unsuccessfully tased him
multiple times. Roell stopped breathing during the encounter
with the deputies and was pronounced dead shortly thereafter.
His death was documented by the coroner as natural, resulting
from his excited delirium.
wife, Nancy Roell, appeals the district court's grant of
summary judgment in favor of the individual deputies on her
claim under 42 U.S.C. § 1983. She also appeals the grant
of summary judgment in favor of Hamilton County on her claims
under both § 1983 and the Americans with Disabilities
Act (the ADA). For the following reasons, we
AFFIRM the judgment of the district court.
suffered from mental illness, including schizoaffective
disorder and paranoid delusions, for many years. Although
Roell's symptoms could be successfully controlled by
medication, he had a history of noncompliance with his drug
regimen. When he did not take his medication, Roell's
mental health deteriorated and his unpredictable behavior
rendered him a danger to both himself and to others.
stopped taking his medication in June 2013 and began
exhibiting signs of mental decompensation by early August.
Sometime in the late evening hours of August 12 or the early
morning hours of August 13, Roell entered a state of excited
delirium. Nancy Roell was out of town during this time,
participating in a church mission in New Jersey. In the midst
of his excited delirium, Roell damaged his and Nancy's
condominium by scattering debris, clothes, and other
household items inside and around the building. Roell then
went to the condominium of his neighbor, Rachana Agarwal, and
threw a flower pot through her window.
was awakened by the noise of shattering glass and went
downstairs to find Roell standing outside of her condominium
by the broken window. She attempted to talk to Roell, who was
screaming something about "water." Roell then
pulled the screen from Agarwal's window and threw it at
her. At that point, Agarwal became scared and ran back inside
the condominium, where she told her son, Soham, to call 911.
Soham dialed 911 and handed the phone to Agarwal, who told
the operator that her neighbor was "acting crazy."
Agarwal testified that, during this time, Roell appeared to
be angry, his face red and his eyes bulging, and he kept
muttering unintelligible things about water. Roell was also
pacing back and forth in front of Agarwal's broken
window, periodically peering into her condominium.
Matthew Alexander, Willy Dalid, and Joseph Huddleston
responded to the dispatch of a "neighbor trouble"
call. First to arrive at Agarwal's condominium were
Deputies Alexander and Huddleston, who were told by Agarwal
that Roell was "in the back breaking things." They
entered the gated patio area and saw Roell standing by
Agarwal's broken window holding a garden hose with a
metal nozzle in one hand and a garden basket in the other.
The garden basket was a hanging plant surrounded by peat moss
and held together with plastic wire. Roell was wearing a
t-shirt but was otherwise naked. According to Deputy
Alexander, Roell was screaming "no" and something
about water when he and Deputy Huddleston arrived.
Huddleston proceeded to ask Roell what he was doing. Although
Deputy Huddleston could not recall Roell's response, he
testified that Roell immediately turned and approached him
and Deputy Alexander in an aggressive manner. Roell still had
the hose and the garden basket in his hands. Deputy Alexander
similarly recalled that he and Deputy Huddleston told Roell
to "show us your hands" and that Roell,
"immediately, within seconds, " charged at them at
a "pretty brisk walk." Deputy Alexander also said
that Roell approached them still holding the hose and the
Agarwal was watching the events unfold from inside the
condominium and heard Roell screaming about how "he
didn't have water and we had water." In addition,
Soham observed the deputies telling Roell to calm down, to
stop resisting, to come over to them, and to drop whatever he
had in his hands. Soham recalled that Roell repeatedly
shouted that he did not have a weapon. But Soham also
testified that, despite Roell's assertions that he was
unarmed, Roell was facing the deputies swinging the hose
"as if he was trying to hit somebody." Rachana
Agarwal, also watching from the inside of her condominium,
confirmed that the deputies told Roell to calm down and that
Roell was swinging the hose nozzle at the deputies. Agarwal
observed the deputies and Roell approach each other, with
Roell proceeding at a pace between a walk and a sprint, still
holding the hose.
Roell approached the deputies, Deputy Huddleston told Roell
to stop and to get on the ground or he would be tased. Deputy
Huddleston then unholstered his X2 Taser and arced it as a
warning. Arcing a taser does not deploy the device; it simply
creates a sound. Roell flinched when Deputy Huddleston arced
his taser but kept approaching. Deputy Huddleston once more
arced his taser and commanded Roell to get on the ground.
Roell again flinched but continued to approach the deputies.
Deputy Huddleston then holstered his taser and reached out to
grab one of Roell's arms. At the same time, Deputy
Alexander grabbed Roell's other arm.
swung the garden basket at Deputy Huddleston as they met.
Deputy Huddleston, Deputy Alexander, and Roell all fell to
the ground outside of the gated patio area during their
struggle. Roell was wet and slippery, either from sweat or
water, and managed to break free from the deputies'
grasp. As Roell tried to enter back through the patio gate,
Deputy Huddleston tased him. Deputy Huddleston testified that
taser appeared to have some effect because Roell buckled over
a little bit. Roell nonetheless continued into the patio and
closed the gate. The deputies followed him through the gate
while Deputy Huddleston's taser was still on its
five-second deployment cycle. By that time, Deputy Dalid had
arrived at the scene. All three deputies tried to restrain
Roell's arms, but were unsuccessful because he was
combative and thrashing around on the ground. Deputy
Alexander testified that he was punched in the face by Roell
at some point during the struggle.
Deputies Alexander and Dalid attempted to hold Roell's
arms, Deputy Huddleston tried to deploy his taser in
drive-stun mode to the back of Roell's leg. This court
has previously explained the use of a taser in drive-stun
mode as follows:
In drive-stun mode, 'the operator removes the dart
cartridge and pushes two electrode contacts located on the
front of the taser directly against the victim. In this mode,
the taser delivers an electric shock . . . [, ] but does not
cause an override of the victim's central nervous system
as it does in dart-mode.'
Cockrell v. City of Cincinnati, 468 F.App'x 491,
492 (6th Cir. 2012) (quoting Mattos v. Agarano, 661
F.3d 433, 443 (9th Cir. 2011) (en banc)). In deploying his
taser in drive-stun mode, Deputy Huddleston hoped to complete
the cycle necessary to achieve Roell's neuromuscular
incapacitation, believing that one of the barbs from his
previous attempt to tase Roell had not connected. The taser
failed to incapacitate Roell, however, and he continued to
struggle with the deputies on the ground. Deputy Huddleston
again holstered his taser and tried to control Roell's
legs, while Deputies Alexander and Dalid attempted to control
managed to escape the grasp of all three deputies and stood
up in a face-to-face position with Deputy Alexander, whose
back was against a tree. Deputy Huddleston once more tased
Roell using the device's dart-mode, this time deploying
two barbs into his back. Although the taser still did not
take effect, the deputies were able to get Roell on the
ground and handcuff him. Because of Roell's continued
resistance, the deputies had to restrain Roell's hands in
front of his body by using two sets of handcuffs.
appeared "somewhat under control" once he was
handcuffed, but he continued to thrash his legs and kicked
Deputy Huddleston in the groin. Deputy Huddleston then sent
Deputy Alexander to get leg shackles from the one of the
patrol cars so that Roell's feet could also be
restrained. Once the deputies shackled Roell's legs, they
positioned him on his left side. Deputy Dalid was trying to
control Roell's upper body by holding on to his right
shoulder. Both Deputy Huddleston and Deputy Dalid testified
that, once restrained, Roell went limp and began to snore.
Roell would wake up, thrash around, and then go limp and
lapse back into snoring. Deputy Dalid observed Roell doing
this twice before he noticed that Roell had no pulse and had
stopped breathing. By that time, Corporal (now Sergeant)
Mikal Steers arrived on the scene and began administering CPR
to Roell until the life squad arrived. Although Corporal
Steers detected a faint pulse on several occasions, he was
unable to revive Roell. The emergency medical technicians
were also unable to revive Roell, and he was pronounced dead
at the hospital emergency room.
Jennifer Schott, the deputy coroner, determined that the
cause of Roell's death was "excited delirium due to
schizoaffective disorder" and that the manner of his
death was natural. Included with the Death Record was a
report drafted by Dr. Schott, stating that Roell had a
history of "physical altercation with police
officers" and that the "use of a conducted energy
device against decedent" had occurred. Also noted were
Roell's various abrasions and contusions, injuries from
the taser barbs, and four broken ribs. The report, however,
did not find that any of these injuries contributed to
Roell's death. In her affidavit, Dr. Schott stated that
she performed a microscopic examination of Roell's barb
wounds and found no evidence that the conducted energy device
used on Roell caused any electrical burns. Nor did Dr. Schott
find any evidence that Roell had been asphyxiated, which is
consistent with the absence of any evidence that the deputies
applied compressive force in attempting to restrain Roell.
August 2014, Nancy Roell, as the executrix of Roell's
estate, filed suit in the United States District Court for
the Southern District of Ohio against both Hamilton County
and the Hamilton County Board of County Commissioners
(collectively, Hamilton County), as well as against Sheriff
Jim Neil and Deputies Alexander, Dalid, and Huddleston. She
first asserted claims pursuant to 42 U.S.C § 1983,
alleging that (1) Deputies Alexander, Dalid, and Huddleston
violated Roell's Fourth Amendment right to be free from
excessive force, and (2) Hamilton County and Sheriff Neil are
subject to municipal liability for the deputies' alleged
use of excessive force. Nancy Roell also brought
intentional-discrimination and failure-to-accommodate claims
against all of the defendants under Title II of the ADA.
Finally, she asserted a state-law claim for the wrongful
death of Roell against all of the defendants and a state-law
claim for assault and battery against Deputies Alexander,
Dalid, and Huddleston.
February 2016, the defendants filed a "Motion to Dismiss
and Motion for Summary Judgment" pursuant to Rule 56(c)
of the Federal Rules of Civil Procedure, which the district
court granted in part and denied the remainder as moot.
First, the court held that Deputies Alexander, Dalid, and
Huddleston were entitled to qualified immunity on Nancy
Roell's § 1983 claim, with the result that Sheriff
Neil and Hamilton County were also not liable under §
1983. Roell v. Hamilton Cty. Bd. of Cty.
Comm'rs, No. 1:14-CV-637, 2016 WL 4363112, at *14
(S.D. Ohio Aug. 16, 2016). The court next ruled that Nancy
Roell had failed to establish a viable claim under the ADA
because she did not produce any evidence that the defendants
intentionally discriminated against Roell because of his
disability. Id. Finally, the court held that Nancy
Roell had abandoned her state-law claims against Hamilton
County and Sheriff Neil. The court then declined to exercise
supplemental jurisdiction over the remaining state-law claims
asserted against the individual deputies and therefore denied
as moot the defendants' motion to dismiss and/or for
summary judgment as to those claims. Id.
rendering its decision, however, the district court did not
specify whether it resolved the defendants' motion using
the summary-judgment standard or the motion-to-dismiss
standard. Id. But the content of the defendants'
motion, the extensive discovery period, and the court's
consideration of materials outside of the pleadings indicate
that the case was decided on summary-judgment grounds. In any
event, Nancy Roell appeals only the district court's
grants of summary judgment in favor of (1) Deputies
Alexander, Dalid, and Huddleston on her § 1983 claim,
and (2) Hamilton County on her § 1983 and her ADA