United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE
Court's consolidated Opinion and Order first addresses
the Motions (ECF DKT #26 in No. 1:16CV957; ECF DKT #25 in No.
1:16CV1753; and ECF DKT #18 in No. 1:16CV2588) of Defendants
City of Westlake, Kevin Bielozer, Mark Arcuri, Nathan Fox and
William Eschenfelder, for Summary Judgment on Qualified
Immunity. For the following reasons, the Motions are granted.
October 23, 2014, at approximately 8:51 p.m., City of Avon
Police Officer Patrick Neuhoff radioed that a white pick-up
truck had been stolen from a golf course in Avon Lake. The
truck, driven by Brandon Pawlak, refused to stop. Defendant
Officers Andy Kehl and Neuhoff pursued the vehicle. The
vehicle traveled south on Jaycox Road and ran a red light.
The truck continued south until it reached Detroit Road,
where it pulled into a parking lot. Neuhoff attempted to
follow the truck into the parking lot. The truck then drove
over a flower bed and back onto Detroit Road. Kehl then
became the lead officer in the pursuit. At 8:52, Neuhoff
requested that the Avon dispatcher radio ahead to the
Westlake Police Department to inform them of the fleeing
vehicle. The dispatcher announced to Westlake Police the
direction and speed of the truck.
time the dispatch was issued, Defendants, Westlake Police
Officers Mark Arcuri and Nathan Fox, were writing reports at
the Westlake Police Department. Initially, Arcuri and Fox
anticipated that the suspect would enter I-90 at Crocker Road
based upon incorrect information on the whereabouts of the
vehicle. However, by the time they left in their cruisers,
they learned that the pursuit was entering Westlake on
Detroit Road. Arcuri and Fox were not directed by supervising
or coordinating officers in relation to the pursuit, nor did
they coordinate with other officers or with each other. They
had no information that the driver was armed and dangerous or
that the driver had committed any violent acts before or
during the pursuit.
and Fox stopped on a stretch of Detroit Road where the road
is three lanes across with the middle lane being a shared
turn lane. On the night in question, the eastbound lane was
under construction and the middle lane was being used for
eastbound traffic. That lane was cordoned off with large
orange traffic barrels. Detroit Road curves slightly to the
north just before this location. The speed limit in this area
is 35 miles per hour. The area is mostly commercial with
parking lots and a sidewalk on either side. On one side is an
apartment complex separated from the street by a few yards.
On the other side is the Dover Gardens Tavern directly
adjacent to the sidewalk.
reaching the area, approximately two minutes and forty-five
seconds after the initial call from dispatch, Arcuri parked
in the middle lane with only his headlights on but not his
overhead lights. He deployed his StopStick, Ltd. tire
deflation devices in the eastbound lane in the path of the
speeding pick-up truck. Farther down the road to the east,
Fox also parked his cruiser, with its overhead flashing
lights operating and partially blocking the eastbound lane.
pick-up truck came around the slight bend in the road at
approximately 74 to 77 miles per hour. The driver swerved to
avoid Arcuri's cruiser, struck the stop sticks (though
the truck's tires did not deflate) and the south curb of
Detroit Road, and began to fishtail at high speed. Having
lost control, the vehicle crashed into the front of the Dover
Gardens Tavern structure, injuring Plaintiffs William Winter,
Bethany Capasso, Jon Masterson, Daniel Bush, Kelly
Deutschendorf, John Comer and Edmund Leece, who were patrons
and employees of the bar.
their Complaints, Plaintiffs claim they suffered severe,
permanent injuries when Defendants engaged in a police
pursuit and attempted to terminate that pursuit by setting up
roadblocks and deploying stop sticks in a manner
substantially certain to cause the fleeing vehicle to crash
through an occupied restaurant at a high rate of speed.
Plaintiffs' First Claim for Relief against Defendants
Arcuri and Fox sets out a claim under 42 U.S.C. § 1983
for violations of Plaintiffs' substantive Fourteenth
Amendment due process rights. The Second Claim for Relief
sets forth a § 1983 claim for supervisory liability
against Defendants Eschenfelder and Bielozer. In the Third
Claim for Relief, Plaintiffs allege that the City of Westlake
and Chief Bielozer, in his official capacity, are liable
under § 1983 for failure to train. The Fourth Claim for
Relief sets out a § 1983 claim against the City of
Westlake and Chief Bielozer, in his official capacity, for
ratification of unconstitutional conduct. Plaintiffs have
asserted an Ohio state law claim for Recklessness in their
Fifth Claim for Relief.
their Motions for Summary Judgment, the Westlake Defendants
assert the defense of qualified immunity and seek dismissal
of Plaintiffs' § 1983 claims. Plaintiffs filed their
Memorandum in Opposition but presented no arguments with
respect to the Motions on behalf of Defendants Eschenfelder,
Bielozer or the City.
LAW AND ANALYSIS
judgment shall be granted only if “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
See Fed.R.Civ.P. 56(a). The burden is on the moving
party to conclusively show no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Lansing Dairy. Inc. v. Espy, 39 F.3d 1339,
1347 (6th Cir. 1994). The moving party must either point to
“particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show
“that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A
court considering a motion for summary judgment must view the
facts and all inferences in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Once the movant
presents evidence to meet its burden, the nonmoving party may
not rest on its pleadings, but must come forward with some
significant probative evidence to support its claim.
Celotex, 477 U.S. at 324; Lansing Dairy, 39
F.3d at 1347.
Court does not have the responsibility to search the record
sua sponte for genuine issues of material fact.
Betkerur v. Aultman Hospital Ass 'n., 78 F.3d
1079, 1087 (6th Cir. 1996); Guarino v. Brookfield
Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992).
The burden falls upon the nonmoving party to “designate
specific facts or evidence in dispute, ” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and
if the nonmoving party fails to make the necessary showing on
an element upon which it has the burden of proof, the moving
party is entitled to summary judgment. Celotex, 477
U.S. at 323. Whether summary judgment is appropriate depends
upon “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.” Amway Distributors Benefits Ass 'n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
(quoting Anderson, 477 U.S. at 251-52).
U.S.C. § 1983 and Qualified Immunity
action brought under 42 U.S.C. § 1983 the two essential
inquiries are: “(1) whether the conduct complained of
was committed by a person acting under color of state law;
and (2) whether this conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or laws
of the United States.” See 42 U.S.C. §
1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981)
overruled on other grounds by Daniels v. Williams,
474 U.S. 327, 330-31 (1986). These inquiries may be addressed
in any order and a court may address whether a constitutional
violation occurred before it looks at whether a right is
clearly established. Plumhoff v. Rickard, 134 S.Ct.
2012, 2020 (2014) citing Pearson v. Callahan, 555
U.S. 223, 233 (2009).
who perform discretionary functions, such as police officers
acting in the line of duty, are generally entitled to
qualified immunity from individual liability for civil
damages unless they violate clearly established rights.
Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). The
Sixth Circuit, in determining whether an official is entitled
to qualified immunity, applies a three-part test: 1) whether
the plaintiff's constitutional right was violated; 2)
whether that right was clearly established at the time such
that a reasonable official would have understood that he was
violating that right; and 3) whether the official's
action was objectively unreasonable in light of the clearly
established rights. Sample v. Bailey, 409 F.3d 689,
696-97 (6th Cir. 2005). A court does not have to consider
these prongs sequentially. Jones v. Byrnes, 585 F.3d
971, 975 (6th Cir. 2009). Should any one portion of the test
go unfulfilled, then qualified immunity is appropriate as a
defense. “When properly applied, [qualified immunity]
protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v.
al-Kidd, 131 S.Ct. 2074, 2085 (2011) quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986). Once the defense of
qualified immunity has been raised, the plaintiff has the
burden of demonstrating the defendant is not entitled to
qualified immunity. Rodriguez v. Passinault, 637
F.3d 675, 689 (6th Cir. 2011).
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Ciminillo v. Streicher,
434 F.3d 461, 468 (6th Cir. 2006). The legal right cannot be
framed in general terms to encompass an expansive area of
law. Bills v. Aseltine, 52 F.3d 596. 602 (6th Cir.
1995). The exact circumstances of the particular case need
not have been previously held illegal for the right to be
“clearly established, ” but the right must be
clear in a particularized way to put the official on notice
that his conduct is illegal. See Scicluna v. Wells,
345 F.3d 441, 446 (6th Cir. 2003); Bell v. Johnson,
308 F.3d 594, 602 (6th Cir. 2002).
within matter, the parties do not dispute that the Westlake
Defendants were acting under color of state law at the time
of this incident. Plaintiffs allege that their Fourteenth
Amendment substantive due process rights were violated when
Arcuri and Fox deployed their stop sticks, forcing Pawlak off
the road and into the tavern.
Amendment Due Process
Court's next inquiry is whether Arcuri and Fox breached
Plaintiffs' Fourteenth Amendment due process rights. A
pillar of the Fourteenth Amendment's due process
guarantee is protection against arbitrary action by the