United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.
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.
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.
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. ¶¶
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.
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.
connection with his September 4, 2014 arrest, Smith pled
guilty to Resisting Arrest, Tampering with Evidence and
Obstructing Official Business.
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
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.
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.
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.
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.
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.
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.
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.
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 ...