United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
M. Parker, United States Magistrate Judge
Heights police officers injured Plaintiff De'Angelo
Wiggins when they arrested him after her failed to comply
with a request to leave private property. He claims the
officers, Patrolman David DuPont and Patrolman Timothy
Tatulinski, used excessive force. After considering the Rule
56 evidence in a light most favorable to Wiggins, the court
finds that DuPont and Tatulinski did not use excessive force
and are entitled to qualified immunity. Plaintiff's other
claims also lack legal and/or factual support. The motion for
summary judgment of Officers DuPont and Tatulinski will,
therefore, be GRANTED.
Statement of Facts
undisputed Rule 56 evidence reveals that St. John Lutheran
Church in Garfield Heights ran a youth basketball program on
Tuesday and Thursday nights in 2016. ECF Doc. 19- 1, p. 10.
Wiggins went to the church on December 20, 2016 with his
friends Jaylon Thomas, Hilton Peck, and Adolph Jackson. ECF
Doc. 19-1, p. 15. Because Wiggins decided he didn't want
to play basketball, a supervisor asked him to leave.
Id. Wiggins, Peck and Thomas asked if they could sit
in Jackson's car in the parking lot while he played
basketball. Id. Jackson gave them the keys to his
car where they sat with the engine off in the church parking
lot. ECF Doc. 19-1, p. 15-16.
Dutton, the person in charge of open gym, called the police
and complained that Wiggins, Peck and Thomas were not
supposed to be on the property because she had asked them to
leave. She feared a fight might occur. ECF Doc. 20-1, Page
ID# 247. Officer DuPont heard the dispatch call and responded
to the scene. While driving to the church, DuPont heard
another officer's radio report that Wiggins had
previously fought with police and could be “highly
disorderly.” ECF Doc. 20-1, Page ID# 242.
arrival, Officer DuPont went inside and talked to Ms. Dutton.
ECF Doc. 20-1, Page ID# 247. She was adamant that she wanted
the young men to leave the property. Id. According
to Wiggins, Officer DuPont approached Jackson's car and
tapped on the window with a flashlight. ECF 19-1, p. 21.
DuPont asked them to roll down the window but the car was
off. ECF Doc. 20-1, Page ID# 246. Wiggins testified that he
opened the door; DuPont says he was the one who did so. ECF
19-1, p. 21; ECF Doc. 20-1, Page ID# 247.
admitted Officer DuPont told the young men that they needed
to leave the property. Wiggins testified that he responded by
stating that Ms. Dutton had told them they could sit in the
car. ECF 19-1, p. 22. Wiggins admitted Officer DuPont told
them they would be arrested if they didn't leave. ECF
19-1, p. 23. Wiggins denied telling DuPont that he
wouldn't leave. Id. He claims that he said,
“I'm not going anywhere” and then got out of
the car. Id. DuPont claims that Wiggins was very
angry; and he asserts Wiggins said that he had every right to
be there, and was going to go in there (the church), and he
wasn't going anywhere. ECF Doc. 20-1, Page ID# 248-249.
claims that when he got out of the car he took a step and
DuPont immediately took him to the ground. ECF 19-1, p. 25.
Wiggins explains that he was facing the car with his back to
DuPont, “trying to slip out the door.” ECF 19-1,
p. 48-49. According to Wiggins, DuPont grabbed his left
shoulder from behind with DuPont's left hand and pulled
him down. Id. DuPont was holding his flash light in
his right hand. ECF Doc. 19-1, p. 51. Wiggins hit the ground
on his chest and stomach. His head didn't hit the ground.
ECF 19-1, p. 50. DuPont remained in a standing position
during the incident. ECF 19-1, p. 52. He pulled Wiggins's
arms behind his back and placed him in handcuffs. ECF 19-1,
p. 50. Wiggins did not see Officer Tatulinski until he stood
up. ECF 19-1, p. 52.
recalls the incident differently. He claims that the two
collided when Wiggins jumped out of the car and that both of
them went to the ground. ECF Doc. 20-1, Page ID# 249. There
was ice around the car. ECF 19-1, p. 20. After they fell,
Officer DuPont was worried about protecting himself from
attack. So he struggled with Wiggins to handcuff him. ECF
Doc. 20-1, Page ID# 251.
the incident, Wiggins's head was injured. Wiggins does
not state how his head was injured. But he has submitted an
unsworn statement from Jaylen Thomas, stating “the
officer slammed [De'Angelo] then hit him with the
flashlight in the face and kicked him a little bit.”
ECF Doc. 18-8, Page ID#131. However, for reasons further
explained below, the court is not permitted to consider this
unsworn statement in evaluating the current motion.
DuPont was not sure how Wiggins was injured, but he denies
intentionally hitting him in the head with his flashlight.
ECF Doc. 20-1, Page ID# 256. DuPont's report stated that
there was “unintended contact” with Wiggins's
head and the flashlight. Id. DuPont thinks that the
flashlight may have hit Wiggins in the head when he jumped
out of the car. ECF Doc. 20-1, Page ID# 257.
the incident, DuPont asked Wiggins if he wanted EMS to be
called. Wiggins told him that he didn't want EMS because
he didn't want a ticket. An EMS unit did come to the
scene, however. Paramedics looked at Wiggins's head but
didn't provide any treatment. ECF 19-1, p. 28. Officer
DuPont gave Wiggins a citation for trespassing. ECF 19-1, p.
29. Wiggins then went to the emergency room where he got
three stitches. Wiggins took one ibuprofen per day for about
a month. ECF 19-1, p. 54. He also went to three doctor
appointments to treat migraine headaches until he felt
better. ECF 19-1, p. 55.
Standard of Review
Fed.R.Civ.P. 56(a), summary judgment must be granted if
“the movant shows that there is no genuine dispute as
to any material fact and that the movant is entitled to
judgment as a matter of law.” A dispute of fact is
“genuine” if “the [record] evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct.2505, 91 L.Ed.2d 202
(1986). As a result, “[c]onclusory allegations,
conjecture and speculation . . . are insufficient to create a
genuine issue of fact.” Kerzer v. Kingly Mfg.,
156 F.3d 396, 400 (2d Cir. 1998) (citation omitted); see
also Fed. R. Civ. P. 56 (e)(2). As the Supreme Court has
explained, “[the non-moving party] must do more than
simply show that there is metaphysical doubt as to the
material facts.” Matsushita Elec., Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). As for the materiality
requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248.
“Factual disputes that are irrelevant or unnecessary
will not be counted.” Id.
determining whether genuine issues of material fact exist,
the court must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255. In addition, “[the
moving party] bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the [record] which it believes
demonstrate the absence of any genuine issue of material
fact.” Celotex v. Catrett, 477 U.S. 317,
323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see
also Fed. R. Civ. P. 56(c), (e). However, when the
moving party has met this initial burden of establishing the
absence of any genuine issue of material fact, the nonmoving
party must come forward with specific facts showing a genuine
dispute of material fact for trial. Fed R. Civ. P. 56(c),
Law and Analysis
Count One - Excessive Force § 1983
asserts an excessive force § 1983 claim in Count One of
his complaint. Officer Tatulinski argues that Wiggins has not
asserted a claim against him in Count One. He also argues
that, even if Wiggins intended to assert a claim against him
in Count One, it would fail because he did not use excessive
force or even touch Wiggins. Officer DuPont argues that his
actions were objectively reasonable and that he is entitled
to a qualified immunity for the force he used on Wiggins.
excessive force claim implicates the constitutional
protections of the Fourth Amendment and Fourteenth Amendments
because he was a free citizen at the time of the incident.
Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir.
2013). Under the Fourth Amendment, the court applies an
objective reasonableness test, examining the reasonableness
of the force in light of the totality of the circumstances
confronting the defendants, and not to defendants'
underlying intents or motivations. Dunigan v. Noble,
390 F.3d 486, 493 (6th Cir. 2004); see also Graham v.
Connor, 490 U.S. 386, 396-397, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989)). The court balances “the nature and
quality of the intrusion on [a plaintiff's] Fourth
Amendment interests against the countervailing governmental
interests at stake.” Ciminillo v. Streicher,
434 F.3d 461, 466-67 (6th Cir. 2006). A police “officer
making an investigative stop or arrest has ‘the right
to use some degree of physical coercion or threat thereof to
effect it.'” Miller v. Sanilac Cnty., 606
F.3d 240, 251 (6th Cir. 2010) (quoting Graham, 490
U.S. at 396)). But that does not carry with it a license ...