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Ebie v. City of Pataskala Division of Police

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

June 20, 2018

Charles M. Ebie, Plaintiff,
v.
City of Pataskala Division of Police, et al., Defendants.

          Vascura Magistrate Judge.

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE.

         Plaintiff Charles M. Ebie ("Plaintiff') brings this action against Defendants the City of Pataskala, Police Chief Bruce Brooks, Officer Trevor Colles, Officer Robert German, and Officer Adam Beach ("Defendants") arising out of injuries Plaintiff sustained during his arrest. Plaintiff asserts claims for violation of 42 U.S.C. § 1983 for excessive force and under Ohio law for intentional infliction of emotional distress and assault and battery. Defendants have moved for summary judgment. ECF No. 17. In conjunction with his brief in opposition to summary judgment, Plaintiff submitted his sworn affidavit, which Defendants move to strike in part for lack of personal knowledge. ECF No. 34. The motions are fully briefed and ripe for disposition. For the following reasons, both of Defendants' motions are GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         A. Plaintiff's initial flight and Colles's pursuit

         This case arises out of Plaintiffs arrest on the evening of December 12, 2015. The facts as to the first part of Plaintiffs arrest are not in dispute. At approximately 10:30 pm, Officer Trevor Colles ("Colles") observed a vehicle, later determined to be driven by Plaintiff, traveling at a speed of approximately 67 miles per hour in an area where the posted speed limit was 50 miles per hour. Colles Incident Narrative, ECF No. 17-1, PAGEID #143. Colles activated his lights and siren, but Plaintiff continued without stopping. Id. Over the next couple of minutes, Plaintiff twice feigned as if he were about to stop his vehicle, but as Colles approached, Plaintiff sped off again. Id. Colles advised dispatch that the vehicle was not stopping and that he was in pursuit. Id. The pursuit lasted approximately 3.8 miles and reached speeds of up to 100 miles per hour. Id.

         B. Initial K-9 bite

         Finally, approximately three and a half minutes after Colles first turned on his lights and siren, Plaintiff brought his vehicle to a complete stop on the right shoulder. Colles Dash Cam Video, ECF No. 29, Exhibit 1. Two other units had responded to Colles' advisement to dispatch, and Plaintiffs vehicle was boxed in by Colles's cruiser and two other cruisers driven by Officer Matthew Maddux ("Maddux") and Officer Adam Beach ("Beach"). Officer Incident Narratives, ECF No. 17-1, PAGEID #142-46. Officers Robert German ("German") and Ted Smith ("Smith") arrived on the scene shortly thereafter. Id.

         Immediately after stopping the vehicle, Plaintiff raised his hands above his head and then placed both his hands outside the driver's window, which was already rolled down. Id.; Colles Dash Cam Video, ECF No. 29, Exhibit 1. Colles, Maddux, and Beach approached Plaintiffs vehicle with weapons drawn and with Colles's K-9 partner, Officer Mutant, on a leash. Id. The officers ordered Plaintiff to exit the vehicle. Id. Plaintiff stated that he could not exit the vehicle because it was still in drive, a statement that was heard by, at minimum, Maddux. Maddux Incident Narrative, ECF No. 17-1, PAGEID #145. Plaintiffs vehicle automatically locked the doors as a safety feature when the vehicle was in drive, and thus the doors were locked and Plaintiff could not exit the vehicle. Ebie Aff. ¶ 9, ECF No. 28-1. Maddux instructed Plaintiff to put the vehicle in park, but Plaintiff feared for his safety if he were to move his hands back inside the vehicle. Id. ¶ 11.

         While Plaintiff continued to keep his hands outside the vehicle (thereby not complying with the officers' orders to place the vehicle in park), Maddux moved to the passenger side window to place the vehicle in park. Maddux Incident Narrative, ECF No. 17-1, PAGEID #145; Maddux Dash Cam Video, ECF No. 29, Exhibit 3. Maddux was able to reach through the passenger window to place the vehicle in park and unlock the doors. While Maddux was reaching through the window, Plaintiff turned his head toward Maddux (though his hands remained raised outside the vehicle). Maddux Dash Cam Video, ECF No. 29, Exhibit 3. At that time, Colles deployed his K-9 to bite Plaintiff, and the bite was successful on Plaintiffs head and left arm. Id.; Colles Incident Narrative, ECF No. 17-1, PAGED #143.

         C. Subsequent K-9 bite, tackle, and taser shots

         From here, the parties' accounts diverge. Defendants contend that as the officers opened the driver's door of the vehicle, Plaintiff "attempted to rush the officers, push his way past them, and flee from the scene, " but German and Smith caught Plaintiff after he took several steps. Defs.' Mot. 5, ECF No. 17; Officer Incident Narratives, ECF No. 17-1, PAGEID #142-46. Plaintiff continued to struggle and resist the officers, refusing orders to get on the ground, which prompted Colles to deploy the K-9 for another successful bite on Plaintiffs left forearm. Id. Plaintiff continued to resist, including "slamm[ing] the K-9 against a police cruiser, " but German and Colles were able to take Plaintiff to the ground. Id. Because Plaintiff continued to resist while on the ground, Beach advised Plaintiff that he would be tased if he did not comply. Id. Plaintiff continued to resist, and Beach deployed his taser. Id. Plaintiff still "did not halt his combative movements, " and Beach tased him a second time. Id. Following the second taser shot, the officers were finally able to handcuff Plaintiff, id., bringing the incident to a close.

         In contrast, Plaintiff contends that once the vehicle doors were unlocked, Colles immediately "engaged Officer Mutant to attack" Plaintiff and that he was never given a chance to exit the vehicle of his own volition. Resp. 6-7, ECF No. 28; Ebie Aff. ¶ 13, ECF No. 28-1. Some combination of the K-9 and the other officers dragged Plaintiff out of the vehicle and across the street. Id. While the K-9 continued to attack Plaintiff, Beach tased Plaintiff while German and Colles "gang tackled" him to the ground. Id. While Plaintiff admits his body continued to move while on the ground, he asserts the movements were convulsions caused by the impact of the ground, the continued K-9 attack, and the taser shot. Id. While these involuntary convulsions continued, Plaintiff was tased again by Beach within seconds of the first taser shot. Id. The officers then handcuffed Plaintiff.

         D. Plaintiff's convictions

         The remaining facts are undisputed. Plaintiff was treated for his dog bite and taser injuries following his arrest by paramedics at the scene and then at Licking Memorial Hospital. A toxicology screen determined that Plaintiff had been under the influence of methamphetamine at the time of his arrest. Toxicology Report, ECF No. 17-1, PAGEID #147-49. Upon his discharge from the hospital, he was taken to Licking County Jail.

         On February 25, 2016, Plaintiff was indicted for the following offenses:

(1) Failure to Comply with the Order or Signal of a Police Officer under R.C. §§ 2921.331(B) and (C)(5)(a)(ii);
(2) Operating a Motor Vehicle While Under the Influence under R.C. § 4511.19(A)(1)(a);
(3) Assaulting or Harassing a Police Dog under R.C. § 2921.321 (A)(1);
(4) Obstructing Official Business under R.C. § 2921.31 (A); and
(5) Aggravated Possession of Drugs (Methamphetamine) under R.C. § 2925.11(A).

         Judgment of Conviction and Sentence at 2, ECF No. 17-1, PAGEID #151. However, the State later dismissed Counts 2, 3, and 4. Id. Plaintiff pleaded guilty on March 24, 2017, to Failure to Comply under R.C. § 2921.331(B) and (C)(5)(a)(ii) and Aggravated Possession of Drugs under R.C. § 2925.11(A). Id. Plaintiff was sentenced to three years of community control sanctions.

         E. The present action

         Plaintiff commenced this action on March 31, 2016, asserting claims (1) under 42 U.S.C. § 1983 against Officers Colles, Beach, and German, as well as Police Chief Bruce Brooks, for excessive force; (2) under § 1983 against the City of Pataskala for creating a policy or practice of unlawful conduct by its police officers, or, in the alternative, a failure to adequately train its police officers; (3) for intentional infliction of emotional distress against Officers Colles, Beach, and German; and (4) for assault and battery against Officers Colles, Beach, and German. Am. Compl., ECF No. 7.

         Defendants filed the present Motion for Summary Judgment on July 31, 2017. ECF No. 17. In opposition to Defendants' Motion, Plaintiff submitted his affidavit, which Defendants also move to strike in part for lack of personal knowledge. ECF No. 34.

         II. MOTION TO STRIKE PORTIONS OF PLAINTIFF'S AFFIDAVIT

         Because it bears on the record the Court will consider in determining Defendants' motion for summary judgment, the Court will turn first to Defendants' motion to strike certain paragraphs of Plaintiffs affidavit attached to Plaintiffs opposition brief. Plaintiffs affidavit sets forth his account of his arrest and his subsequent convictions. ECF No. 28-1. Defendants assert that the Court must strike the following portions of Plaintiffs affidavit because they are not made on personal knowledge as required by Fed.R.Civ.P. 56(c)(4):

• ¶ 2: "To issue me a traffic/speeding violation, Officer Colles turned his car around to catch up with me."
• ¶ 3: "The Pataskala Division of Police through its Officer Robert German ("Officer German"), Officer Ted Smith ("Officer Smith"), Officer Matthew Maddux ("Officer Maddux"), and Officer A. Beach ("Officer Beach") came to assist Officer Colles in stopping and arresting me."
• ¶ 6:"... and this charge [driving under the influence of drugs or alcohol] was later dismissed when my blood/alcohol testing results were returned."
• ¶ 11: "Instead of handcuffing me, the officers continued to insist that I exit the locked car with the automatic transmission still engaged...The officers continued to insist that I exit the locked car with ...

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