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Brozman v. Solic

United States District Court, N.D. Ohio, Eastern Division

December 29, 2017



          Benita Y. Pearson, United States District Judge.

         Pending before the Court is Defendants' Motion for Summary Judgment. ECF No. 15. Plaintiff has responded to the motion (ECF No. 17), and Defendants have replied (ECF No. 19). The parties also filed a Joint Stipulation of Facts. ECF No. 14. For the reasons that follow, the Court grants Defendants' Motion.

         I. Background

         Plaintiff Jeffrey Brozman was a passenger in a vehicle that Defendant Adam Hess, an officer in the Austintown Police Department, lawfully stopped due to a traffic violation. ECF No. 14 at PageID #: 86. Officer Hess and Defendant Christopher Collins told the five occupants of the car to exit the car to allow Sergeant Collins and a drug-sniffing dug to conduct an open air dog sniff. Id. The dog alerted on a drug element in the car, and the officers announced their intent to search the car and its occupants. Id. The officers ordered Plaintiff to keep his hands out of his pockets, but Plaintiff persisted on keeping his hands in his pockets. Plaintiff had four prescription pills in his pocket for which he did not have a valid prescription. Id.

         After Plaintiff refused to comply with orders to remove his hands from his pockets, Officer Hess deployed his taser and hit Plaintiff in the chest. The taser did not affect Plaintiff because he removed one of the probes. Id. at PageID #: 87.

         It is at this point when the parties disagree as to what occurred. Officer Hess testified that after the first taser use failed, he forced Plaintiff to the ground. ECF No. 15-3 at PageID #: 197-98. Once Plaintiff was on the ground, he resisted going onto his stomach, and this resistance caused Officer Hess to taser Plaintiff a second time. Id. Plaintiff, however, claims that Officer Hess tasered him after Officer Hess had already handcuffed him. ECF No. 15-1 at PageID #: 111-13. Later in his deposition, Plaintiff testified that he was tasered once in the chest, but he pulled one of the barbs out to nullify the impact, and then, after he was tasered a second time in the hip, which caused him to fall to the ground. Id. at PageID #: 116-17.

         The parties stipulate that "[o]nce the plaintiff complied, he was handcuffed and removed from the area without incident." ECF No. 14 at PageID #: 87.

         The officers then took Plaintiff to the Austintown Police Department. Id. at PageID #: 87. In his report, Sergeant Collins wrote that Plaintiff admitted, "I shouldn't have done that, it was stupid and I'm drunk." Id. The day after his release, Plaintiff sought medical attention and told the emergency room staff at Humility of Mary Health Partners Emergency Room that the Austintown Police had tasered him for resisting arrest. Id. At his next hospital visit, Plaintiff told hospital staff that he "ran from the police, got tase[re]d, and fell to the ground." Id.

         Plaintiff initially faced charges of resisting arrest and drub abuse, but the original case was dismissed without prejudice due to lack of evidence supporting the charges. The prosecutor had not received the test results of the evidence the police seized from Plaintiff upon arrest. Id. Eight months later, the charges were re-filed. Id. Plaintiff pled guilty to the drug abuse charge, and the prosecution dismissed the resisting arrest charge. Id. at PageID #: 88.

         Plaintiff Jeffrey Brozman brought a 42 U.S.C. § 1983 action in the Mahoning County Court of Common Pleas, against Detective Lieutenant Jeffrey Solic of the Austintown Police Department, the Township of Austintown, the Township of Austintown Board of Trustees, and various John Doe Defendants. ECF No. 1-2. Defendants removed the case. ECF No. 1. Defendants noted in their motion for summary judgment Plaintiff had indicated that he would voluntarily dismiss his claim against the Austintown Township Board of Trustees for improper training, though Plaintiff has not a filed notice of dismissal as of the date of this date. ECF No. 15 at PageID #: 90. Regardless, Plaintiff did not address the issue when responding to the summary judgment motion, so the Court will treat the issue as abandoned.

         In his complaint, which the Court later permitted him to amend by interlineation to include Sergeant Collins and Officer Hess (See 7/11/17 Order), Plaintiff alleges that members of the Austintown Police Department "maliciously inflicted harmful and offensive contact on [his] body beyond the scope of the reasonable use of force ... [including] deploy[ment] of a T.A.S.E.R." while Plaintiff was handcuffed. ECF No. 1-2 at PageID #: 8. Plaintiff alleges that he suffered injuries that included a hip fracture. Id. Plaintiff alleges that he was arrested and later faced charges of drug abuse and resisting arrest. Id. Plaintiff then alleges that the prosecution dismissed those charges, but later re-presented the charges "[u]pon determining that [Defendants] faced civil liability for their treatment of [him]." Id. at PageID #: 8-9. Plaintiff alleges that the officer's actions violated his Fourth Amendment rights and that Defendant Township of Austintown failed adequately to train, supervise, and/or discipline its officers. Id. at PageID #: 9.

         II. Standard of Review

         Summary judgment is appropriately granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden of proof at trial.” Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).

         Once the movant makes a properly supported motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox v. Ky. Dep't. of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The non-moving party must, to defeat the motion, “show that there is doubt as to [whether] the material facts and that the record, taken as a whole, does not lead to a judgment for the movant.” Guarino, 980 F.2d at 403. In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party ...

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