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Smith v. City of Lorain

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

July 11, 2018

PELE SMITH, Plaintiff,
v.
CITY OF LORAIN, ET AL., Defendant.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants City of Lorain, Chief Cel Rivera and Officers Michael Gidich, Timothy Thompson, Miguel Salgado and Zachary Ferenec's (collectively, “Defendants”) Motion for Summary Judgment. For the following reasons, the Court grants Defendants' Motion in part and denies it in part.

         This case arises out of the September 4, 2014 arrest of Plaintiff Pele Smith (“Smith”). Smith alleges § 1983 Claims for Excessive Force in Violation of the Fourth Amendment, False/Wrongful Arrest/Imprisonment in Violation of the Fourth and Fourteenth Amendments and City Customs and Policies Causing Constitutional Violations. Smith also alleges state-law claims for Gross Negligence and Negligent Retention and/or Supervising.

         Background Facts

         According to Smith's Complaint, Defendant Officers Timothy Thompson (“Thompson”) and Michael Gidich (“Gidich”) were on patrol in the area of East 34th Street in the City of Lorain, Ohio (the “City”) on September 4, 2014. Compl. ¶¶ 19-20. Thompson and Gidich decided to stop Smith while Smith was walking along East 34th Street. Compl. ¶¶ 19, 21. There is some disputed evidence that the officers had received an anonymous tip that Smith was dealing drugs out of his home, which was in the area. Smith complied and walked over to the vehicle in a non-aggressive manner, yet the officers violently grabbed Smith and took him to the ground. Compl. ¶¶ 22-24. Gidich contends that he witnessed Smith swallowing drugs in an effort to conceal them, which is why Smith was taken to the ground. Once on the ground, the officers handcuffed Smith and told him to sit on the curb near their police car, which Smith did. Compl. ¶¶ 25-26.

         Shortly thereafter, Defendant Officer Zachary Ferenec (“Ferenec”) arrived on the scene and approached Smith, Thompson and Gidich. Compl. ¶ 26. Ferenec's police car was equipped with a dash cam that captured footage of the rest of the events. Around the same time, Defendant Officer Miguel Salgado (“Salgado”) also arrived on the scene. Compl. ¶ 32. Ferenec, Thompson and Gidich raised Smith to his feet and Ferenec walked Smith toward Ferenec's police car. Compl. ¶ 27. When Ferenec and Smith got to the car, Ferenec, without provocation, slammed Smith's chin into the windshield of the car with so much force that the windshield shattered. Compl. ¶ 28. According to Ferenec, Smith was resisting Ferenec, which is why the officer felt it was necessary to use force to get Smith to the car.

         Smith also alleges that the City and Police Chief Cel Rivera (“Rivera”) implemented customs and policies causing officers to violate citizens' Fourth and Fourteenth Amendment rights. Compl. ¶ 51. In 2012, the U.S. Department of Justice (“DOJ”) investigated the City of Lorain Police Department (“LPD”) as a result of allegations of excessive force and sexual misconduct committed by LPD officers. The DOJ found that at the time of their investigation (2012), there was not a continuing pattern of excessive force, but that such a pattern had existed in previous years. The DOJ issued recommendations to the City and LPD in order to prevent such a pattern from re-emerging.

         In connection with his September 4, 2014 arrest, Smith pled guilty to Resisting Arrest, Tampering with Evidence and Obstructing Official Business.

         Smith alleges: (1) Excessive Force in Violation of the Fourth Amendment against Ferenec, Thompson and Gidich; (2) False/Wrongful Arrest/Imprisonment in Violation of the Fourth and Fourteenth Amendments against Ferenec, Thompson and Gidich; (3) Customs and Policies Causing Constitutional Violations against the City and Rivera; (4) Gross Negligence against Ferenec, Thompson, Gidich and Salgado and (5) Negligent Retention and/or Supervising against the City and Rivera.

         Defendants' Motion

         Defendants urge the Court to consider the Supreme Court case Heck v. Humphrey, 512 U.S. 477 (1994), which Defendants contend bars Smith's § 1983 Excessive Force and False/Wrongful Arrest/Imprisonment claims because allowing recovery on these grounds would imply the invalidity of Smith's Resisting Arrest conviction.

         Even if Heck does not bar Smith's Excessive Force Claim, Defendants contend that the officers are all entitled to qualified immunity on all counts. Furthermore, Ferenec's use of force was reasonable and the Court should give a high level of deference to the officers' determinations at the scene. Lastly, Smith has no claim against Salgado because he neither used force nor failed to intervene. Salgado did not have enough time to intervene.

         Defendants also contend that Smith does not have a basis for his Monell Claim against the City and Rivera because Smith's constitutional rights were not violated. Furthermore, his allegations are based on conclusory statements that have not been backed up by evidence. With regard to the DOJ investigation report (“DOJ Report”) that Smith references, Defendants contend that the report is not admissible as evidence under Rule 56.

         Finally, Defendants argue that the City is immune from the claim of Negligent Retention and/or Supervision because the injury to Smith occurred in connection with the City's performance of a governmental or proprietary function. Even if the City is not immune from this claim, Defendants contend that it has not been sufficiently alleged by Smith.

         Plaintiff's Response

         Smith contends that his first claim for Excessive Force is not barred by Heck because Ferenec used excessive force on Smith after Smith was already arrested. By the time Ferenec arrived on the scene, Smith was already handcuffed and subdued. Therefore, Smith's Excessive Force claim would not imply the invalidity of Smith's Resisting Arrest conviction.

         Smith also argues that he has sufficiently alleged his claim against the City and Rivera for Customs and Policies Causing Constitutional Violations. Smith urges the Court to consider the DOJ Report as evidence. Furthermore, Smith contends that the officers' depositions show that LPD did not make appropriate changes in response to the DOJ Report.

         Furthermore, the officers are not entitled to immunity from Smith's Gross Negligence claim because the officers acted with malicious purpose, in bad faith or in a wanton or reckless manner. The officers consistently overreacted to Smith's actions and Smith was compliant with their demands.

         Lastly, Smith argues that the DOJ Report also proves that the City and Rivera were deliberately indifferent to the risk of constitutional violations and thus, Smith's claim for Negligent Retention and/or Supervision has been sufficiently alleged. The City and Rivera failed to make significant changes to LPD policy after receiving the DOJ Report, thus contributing to an ongoing policy of officers, including the Defendant officers, violating ...


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