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Lemmon v. City of Akron

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

May 18, 2018




         Before the Court is the motion of defendants, City of Akron (“City”), James Nice (“Chief Nice”), and Brian Armstead (“Sergeant Armstead”), for summary judgment. (Doc. No. 24 [“MSJ”].) Plaintiff, William T. Lemmon, Sr. (“Lemmon Sr.”), opposes the motion (Doc. No. 27 [“Opp'n”]), and defendants have filed a reply. (Doc. No. 31 [“Reply”].) For the reasons to follow, defendants' motion for summary judgment is GRANTED.

         I. Background

         In this civil rights action, Lemmon Sr. challenges the actions of the City and its officers in the shooting death of his son, William R. Lemmon (“William”). On September 25, 2015, City police officers responded to a report over the police radio that the Bista Brothers Grocery on North Main Street in Akron, Ohio had been robbed. Dispatch reported that there were two alleged assailants, one white and the other black, and that one of the men had displayed a gun during the robbery. Both men fled the scene through a parking lot. (Doc. No. 24-2 (Affidavit of Sergeant Brian Armstead [“Armstead Aff.”]) ¶¶ 2, 5-6; Doc. No. 24-3 (Affidavit of Officer Dawn Forney [“Forney Aff.”]) ¶¶ 3, 6; Doc. No. 24-1 (Declaration of David Whiddon [“Whiddon Decl.”]) ¶ 5, Item 2, Akron Police Department radio traffic from Sept. 25, 2015 [“Dispatch Recording”]); Opp'n at 198-99, [1] citing Dispatch Recording.) With respect to the description of the white assailant, eyewitnesses reported that he was approximately 5”7' to 5”8', between the ages of 20-25, and wearing either a red t-shirt and jeans or a black t-shirt with white trim and black pants. (Opp'n at 198-99, citing Dispatch Recording.)

         The City dispatched officers to the scene. Sergeant Armstead was one of the City officers to respond. (Armstead Aff. ¶ 6.) Having heard over the radio that the suspects had fled south, Sergeant Armstead proceeded to patrol the area south of the robbery. (Id. ¶ 7.) Sergeant Armstead remembered an officer reporting over the radio that a witness had seen the suspects jump over a fence and head southbound towards the area where Sergeant Armstead was searching. (Id.) He also remembered that, at the time, another officer reported that one of the suspects left the area on a bike and that tire tracks had been located at the scene. (Id.)

         Sergeant Armstead soon spotted a man riding a bicycle, and it is undisputed that this man was William. Sergeant Armstead contacted dispatch to receive a current description of the assailants, and, other than the fact that the cyclist was wearing a blue jacket and a beanie on his head, the man fit the description of the white assailant. (Id.) Sergeant Armstead noticed that the man “had his hand holding something at the side of his coat, almost like he was concealing something under his coat.” (Id. ¶ 8.) “This heightened [Sergeant Armstead's] awareness[, ”] and he “never lost sight of [William].” (Id.) Sergeant Armstead reported William's description and location over the radio. (Id.)

         Officer Dawn Forney (“Officer Forney”) was one of the first officers to arrive at the location reported by Sergeant Armstead. (Id. ¶ 9; see Forney Aff. ¶ 6.) Officer Forney observed William riding his bike and followed him into the parking lot. (Forney Aff. ¶ 6.) When she confirmed that she was following the correct person, she continued to follow him, and reported on the radio that she was behind the suspect in a parking lot located in an alley behind a bar. She turned on her lights and siren, but William did not immediately stop. (Id.)

         By the time Sergeant Armstead pulled into the parking lot, William had stopped in front of Officer Forney's car, and Officer Forney was already out of her vehicle with her weapon drawn. (Armstead Aff. ¶ 9.) After pulling his vehicle alongside Officer Forney's cruiser, Sergeant Armstead exited his vehicle, drew his weapon, and took a position that was approximately 10 to 15 feet from William. (Id. ¶ 10.) William was stopped, straddling his bike, and he had his right hand in the waistband of his pants. (Armstead Aff. ¶ 11; Forney Aff. ¶ 7.) Officer Forney and Sergeant Armstead began to shout at William, instructing him to get his hands up and show his hands.[2] (Armstead Aff. ¶ 11; Forney Aff. ¶ 7.) William did not comply, and, instead, replied “Fuck You bitch, ” “Shoot me, ” “Shoot me bitch, ” “You're going to have to shoot me, ” and “You're going to have to kill me.” (Forney Aff. ¶ 7; see Armstead Aff. ¶ 11.)

         During this standoff several other City officers arrived on the scene, though Sergeant Armstead and Officer Forney concede that they were so focused on William and the tense situation that they were unaware of who had joined them. (Forney Aff. ¶ 7; Armstead Aff. ¶ 12.) There is no dispute, however, that Sergeant Raffaele Spano, Jr. (“Sergeant Spano”) and Officer Robert Patrick (“Officer Patrick”) eventually arrived at the location. (Doc. No. 24-4 (Affidavit of Sergeant Raffaele Spano, Jr. [“Spano Aff.”]) ¶ 5; Doc. No. 24-5 (Affidavit of Officer Robert Patrick [“Patrick Aff.”]) ¶ 8.) Sergeant Spano exited his vehicle, took a position between Sergeant Armstead and Officer Forney, and drew his service weapon. (Spano Aff. ¶ 5.) Noting that William was wearing black Nikes “as described over the radio, ” and recognizing that other officers had “lethal cover, ” Officer Patrick took a position between a police cruiser and a semi-truck, and had his taser out. (Id. ¶ 6; Patrick Aff. ¶ 9.)

         William continued to ignore the officers' commands to show his hands and to advise the officers that they were going to have to kill him. (Spano Aff. ¶ 7; Forney Aff. ¶ 11.) Sergeant Armstead averred that he was especially concerned for the safety of Officer Forney because she was closer to William than he was. (Armstead Aff. ¶ 11.) Sergeant Armstead believed that William was going to try to flee, when William actually “took an aggressive step in [his] direction with his hand still down at his waist, and [Sergeant Armstead] fired [his] weapon” four times. (Id. ¶ 12; Patrick Aff. ¶ 10 [“The suspect made a quick move towards Sergeant Armstead, like he was going to get off the bike.”].) Officer Patrick fired his taser at the same moment Sergeant Armstead discharged his revolver. (Patrick Aff. ¶ 11.) Similarly, other officers reported that William “suddenly” dropped his bike immediately prior to Sergeant Armstead and Officer Patrick discharging their weapons at William. (Forney Aff. ¶ 7; Spano Aff. ¶¶ 8-9.)

         Sergeant Armstead averred that he fired his weapon because he knew that a gun had been used in a robbery, and William's conduct-riding his bike one handed, like he was concealing something, and keeping his hands in the front of his pants with “his elbow raised in a manner consistent with what someone is going to do if he is going to draw a weapon from a concealed position”-suggested that William could use a weapon on the officers. (Armstead Aff. ¶ 14.) He explained that, “[a]t the moment when [William] took an aggressive step towards [him], . . . [he] feared that [he] had to do something because [William's] behavior was way too aggressive and [he] was not going to allow [William] to draw a weapon and shoot at [him] or another officer. At that moment [Sergeant Armstead] feared for [his] own safety, and the safety of the other officers. So, [he] fired [his] weapon.” (Id.)

         Propelled by the force of the shots, William fell forward on his chest, laying on both of his hands. (Armstead Aff. ¶ 14; Forney Aff. ¶ 8; Spano Aff. ¶ 10; Patrick Aff. ¶ 12.) Officers moved closer to William and placed handcuffs on him. (Armstead Aff. ¶ 16; Fortney Aff. ¶ 8.) One officer started chest compressions until the paramedics arrived. (Fortney Aff. ¶ 9.) William was transported to the hospital where was pronounced dead. It is undisputed that no weapon was ever recovered from William's person or from the scene. (Spano Aff. ¶ 10.)

         David Whiddon, a Lieutenant with the Akron Police Department and assigned to the Investigative Subdivision, Detective Bureau, Crimes Against Persons Unit, conducted a criminal homicide investigation into the shooting death of William. (Whiddon Decl. ¶¶ 2-3.) As part of the investigation, an autopsy was performed, and the medical examiner documented gunshot wounds to William's chest, right upper abdomen, right hip, right upper thigh, and right wrist. (Id. ¶ 6.) The officers who were present at the scene of the shooting were also interviewed, and a file was created containing evidence from the scene, witness statements, and audio and video recordings. (Doc. No. 31-2 (Declaration of David Whiddon [“Whiddon Decl. I”]) ¶ 5.) The results of the investigation were presented to the Summit County, Ohio Prosecuting Attorney, who concluded that Sergeant Armstead did not violate any federal or state laws in his use of force against William, and that he was legally justified in using deadly force. (Whiddon Decl. ¶ 7.) No charges were brought against Sergeant Armstead or any other officer as a result of the shooting.

         On September 23, 2016, Lemmon Sr., as the co-administrator of William's estate, brought suit in this Court against defendants. The complaint raises federal claims against Sergeant Armstead, under 42 U.S.C. § 1983, for excessive force and unreasonable seizure, and against the City and Chief Nice, in his official capacity, for failure to train and supervise and for ratification. It also raises state law claims against all defendants for assault and battery, intentional infliction of emotional distress, and wrongful death. (Doc. No. 1 (Complaint [“Compl.”]).)

         On February 15, 2017, the Court conducted a telephonic case management conference, at which time it set dates and deadlines for the case, including deadlines for expert and non-expert discovery. (Doc. No. 13 (Case Management Plan and Trial Order [‘”CMPTO”]).) Aside from receiving mandatory disclosures under Fed.R.Civ.P. 26, it does not appear that Lemmon Sr. conducted any discovery in this case. After the discovery deadlines had passed, defendants brought the present motion for summary judgment. The Court permitted Lemmon Sr. to file an untimely opposition brief, but refused Lemmon Sr.'s untimely request to extend the expert witness deadline. (Doc. No. 22 (Memorandum Opinion); see Doc. No. 20 (Plaintiff's Motion for a 30-day Extension of the Expert Witness Deadline).)

         II. Standard of Review

         When a party files a motion for summary judgment, it must be granted “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.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing 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.” Fed.R.Civ.P. 56(c)(1).

         In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict[.]” Id. at 252.

         Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe Cty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial). Moreover, conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary judgment. See Lujan v. Nat'l Wildlife Fed'n, 487 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In other words, to defeat summary judgment, the party opposing the motion must present affirmative evidence to support his or her position; a mere “scintilla of evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (quotation marks and citation omitted). Rule 56 further provides that “[t]he court need consider only” the materials cited in the parties' briefs. Fed.R.Civ.P. 56(c)(2); see also Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (“The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.”) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)).

         Under this standard, the mere existence of some factual dispute will not frustrate an otherwise proper summary judgment motion. Dunigan v. Noble, 390 F.3d 486, 491 (6th Cir. 2004) (citing Anderson, 477 U.S. at 247-48) (quotation marks omitted). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248 (citation omitted).

         III. Discussion

         A. Excessive Force and Unreasonable Seizure

         1. Law on Qualified ...

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