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Wiggins v. Dupont

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

May 24, 2018

PTL. DAVID DUPONT, et al., Defendants.


          Thomas M. Parker, United States Magistrate Judge

         I. Introduction

         Garfield 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[1] 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.

         II. Statement of Facts

         The 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.

         Karen 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.

         Upon 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.

         Wiggins 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.

         Wiggins 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.

         DuPont 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.

         During 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.

         Officer 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.

         After 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.

         III. Standard of Review

         Under 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.

         In 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), (e).

         IV. Law and Analysis

         A. Count One - Excessive Force § 1983

         Wiggins 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.

         Wiggins's 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 ...

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