United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. Pearson, United States District Judge.
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'
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.
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
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.
parties stipulate that "[o]nce the plaintiff complied,
he was handcuffed and removed from the area without
incident." ECF No. 14 at PageID #: 87.
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.
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
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.
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.
Standard of Review
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).
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 ...