United States District Court, S.D. Ohio, Eastern Division
Charles M. Ebie, Plaintiff,
City of Pataskala Division of Police, et al., Defendants.
Vascura Magistrate Judge.
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE.
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
Plaintiff's initial flight and Colles's
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.
Initial K-9 bite
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.
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.
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.
Subsequent K-9 bite, tackle, and taser shots
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.
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.
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
February 25, 2016, Plaintiff was indicted for the following
(1) Failure to Comply with the Order or Signal of a Police
Officer under R.C. §§ 2921.331(B) and
(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. §
(4) Obstructing Official Business under R.C. § 2921.31
(5) Aggravated Possession of Drugs (Methamphetamine) under
R.C. § 2925.11(A).
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.
The present action
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
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.
MOTION TO STRIKE PORTIONS OF PLAINTIFF'S
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
• ¶ 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 ...