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Cannon v. Licking County

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

June 21, 2019

BECKY CANNON, Plaintiff,
v.
LICKING COUNTY, et al., Defendants.

          Elizabeth P. Deavers Magistrate Judge.

          OPINION AND ORDER

          GEORGE C. SMITH, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court upon Defendants' Motion for Summary Judgment (Doc. 26). Plaintiff filed a Response (Doc. 29) and Defendants have replied (Doc. 33). Defendants' Motion is fully briefed and ripe for disposition. For the following reasons, Defendants' Motion is

         GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         On April 16, 2016, Becky Cannon (“Ms. Cannon” or “Plaintiff”) was at home with her husband, Dan Cannon (“Mr. Cannon”), when she became concerned that Mr. Cannon was suffering a medical emergency. (Doc. 1, Compl. ¶ 13). Ms. Cannon called 911 to seek treatment for her husband. (Id.) Several minutes after she called 911, Emergency Medical Technicians (“EMTs”) arrived at her home. (Id. at ¶ 14). The EMTs evaluated Mr. Cannon on the front porch of their home and found that he was not suffering from any medical conditions. (Id. at ¶ 16). Shortly thereafter, Deputy Jennifer Green (“Officer Green”), Deputy Robert Meek (“Officer Meek”), and Licking County Sheriff's Deputy Jim Dearing arrived at Ms. Cannon's home. (Id. at ¶ 17). While waiting for the EMTs to complete their work, Mr. Cannon informed Officer Green that Ms. Cannon was drinking earlier in the day. (Id. at ¶ 18). After learning that Ms. Cannon was intoxicated, Officer Green entered Ms. Cannon's home to speak with her. (Id. at ¶ 18). Ms. Cannon instructed Officer Green to leave her home, but Officer Green refused and Ms. Cannon became agitated. (Id. at ¶ 20). After refusing to leave Ms. Cannon's home, Officer Green threatened Ms. Cannon with arrest for disorderly conduct if she did not calm down. (Id. at ¶ 21). Ms. Cannon again asked Officer Green to leave her home, and Officer Green again refused. (Id. at ¶ 22). After a few moments, Officer Meek entered Ms. Cannon's home and she again asked the deputies to leave. (Id. at ¶ 23; Doc. 29, Resp. at 9). Officer Meek, thinking he couldn't help the situation, talked Officer Green into leaving the residence, and the officers then left the residence. (Doc. 29, Resp. at 9).

         Ms. Cannon, who was upset, began to break plates and other small items inside her own home. (Id. at ¶ 25). Ms. Cannon's daughter, Samantha Hottinger (“Ms. Hottinger”) was notified that the squad was at Ms. Cannon's home. (Doc. 25-13, Hottinger Dep. at 18). Ms. Cannon was babysitting Ms. Hottinger's children on the day of the incident. (Id. at 17-18). Ms. Hottinger headed to the house, removed her children from the house, and instructed a friend to call the police. (Id. at 22-25). Her friend called 911 and reported that Ms. Cannon was acting disorderly. (Doc 1, Compl. ¶ 29). Roughly five to ten minutes after they had left the residence, Officers Meek and Green were again dispatched to Ms. Cannon's home. (Id. at ¶ 28). Officer Green arrived first and entered Ms. Cannon's home. (Id. at ¶¶ 30-34). As before, Ms. Cannon instructed Officer Green to leave, and Officer Green refused. (Id. at ¶ 31). Ms. Cannon was shouting at Officer Green and calling her names such as “C and an [sic] F-ing B.” (Doc. 26-2, B. Cannon Dep. at 94). Officer Green informed Ms. Cannon that she needed to calm down or she would be placed under arrest for disorderly conduct. (Id.).

         Officer Meek then arrived at Ms. Cannon's home to assist Officer Green. (Doc. 1, Compl. at ¶ 33). At this time, Officer Green informed Officer Meek that Ms. Cannon needed to be arrested for disorderly conduct. (Doc. 26-2, B. Cannon Dep. at 94). Officer Green asked Ms. Cannon to place her arms behind her back. (Id. at 95). According to Ms. Cannon, she said “fucking arrest me” and threw her hands behind her back. (Id. at 95). Officer Green then applied one handcuff. (Id. at 95-96). Ms. Cannon “reflexively moved her arm slightly” as the handcuffs were being applied. (Doc. 1, Compl. at ¶ 35). Ms. Cannon contends that this was a reflexive reaction to the tight handcuffs. (Id.). Officer Meek then stated “let me fucking get her” and executed a takedown maneuver to bring Ms. Cannon to the ground. (Id. at ¶ 36; Doc. 26-2, B. Cannon Dep. at 97). Ms. Cannon describes the action as a “body slam.” (Doc. 26-2, B. Cannon Dep. at 94). The force of this takedown caused Ms. Cannon to briefly lose consciousness. (Id. at 100).

         At this point, Officers Meek and Green only secured one of Ms. Cannon's arms in the handcuffs. (Id. at 97). Once on the ground, Officers Meek and Green delivered several strikes with their hands and knees to Ms. Cannon's chest, side, and legs. (Doc.1, Compl. at ¶ 41). Additionally, Officer Green placed a knee on her back while trying to restrain her. (Doc. 25-1, Green Dep. at 106). After this incident, Officers Meek and Green removed Ms. Cannon from her home and took her to the Licking County jail where she remained until she was released on bail. (Doc.1, Compl. at ¶ 50). Several days later Ms. Cannon sought medical treatment at a hospital for her injuries, including soreness and bruising. (Id. at ¶ 57).

         Ms. Cannon was charged with disorderly conduct and resisting arrest. (Id. at ¶ 51). Ms. Cannon pled guilty to the disorderly conduct charge and entered a pretrial diversion program of intervention in lieu of conviction for the resisting arrest charge. (Id. at ¶ 51).

         II. STANDARD OF REVIEW

         Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012). The Court's purpose in considering a summary judgment motion is not “to weigh the evidence and determine the truth of the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient evidence, ” in favor of the nonmoving party; evidence that is “merely colorable” or “not significantly probative, ” however, is not enough to defeat summary judgment. Id. at 249-50.

         The party seeking summary judgment shoulders the initial burden of presenting the Court with law and argument in support of its motion as well as identifying the relevant portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). If this initial burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce evidence that results in a conflict of material fact to be resolved by a jury”).

         In considering the factual allegations and evidence presented in a motion for summary judgment, the Court “views factual evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor.” Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence to support [the non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.

         III. DISCUSSION

         Ms. Cannon brings causes of action against Officers Meek and Green (in their individual capacities) under 42 U.S.C § 1983 for excessive force in violation of her federal constitutional rights. She also brings claims against Licking County alleging its deliberate indifference to excessive force and fabricating or omitting evidence in violation of her federal constitutional rights. Additionally, Ms. Cannon brings claims against Officers Meek and Green under Ohio state law for battery.

         Defendants argue that they are entitled to summary judgment because, even with the facts viewed in a light most favorable to Ms. Cannon, qualified immunity protects Officers Meek and Green and Ms. Cannon cannot establish that Licking County is subject to municipal liability.

         This Court will address each of these claims in turn. Before turning to Defendants claims of qualified immunity, this Court must consider whether Ms. Cannon abandoned her fabrication of evidence claims and whether Heck v. Humphrey bars the excessive force claims brought against Officers Meek and Green.

         A. Abandonment of Fabrication of Evidence Claim

         In the Sixth Circuit, “a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.” Brown v. VHS of Michigan, Inc., 545 Fed.Appx. 368, 372 (6th Cir. 2013) (citing Hicks v. Concorde Career Coll., 449 Fed.Appx. 484, 487 (6th Cir. 2011)).

         Defendants moved for summary judgment on Ms. Cannon's fabrication of evidence claims. (Doc. 26, Defs' Mot. at 2-3). Plaintiff's Response to the Motion (Doc. 29) does not refute any of Defendants' arguments on this claim, nor does it discuss the fabrication of evidence claims in any way. For this reason, this Court deems Ms. Cannon to have abandoned her fabrication of evidence claims and Defendants Motion for Summary Judgment on this claim is GRANTED.

         B. The Heck v. Humphrey Hurdle

         Defendants first raise the possibility of Heck barring the excessive force claims in their Reply (Doc. 29) to the Plaintiff's Response to the Motion for Summary Judgment.[1] (Doc. 29, Reply at 23). This Court has the discretion to consider arguments raised for the first time in a reply memorandum. See Helicopters v. City of Columbus, 879 F.Supp.2d 775, 779-80 (S.D. Ohio 2012) (Frost, J.). This Court will consider whether the Heck bar applies in the case at hand.

         Under Heck v. Humphrey, 512 U.S. 477 (1994), a § 1983 suit is not permitted if success on such claims would necessarily invalidate a plaintiff's underlying state conviction (unless the state conviction has been reversed, expunged, or invalidated). See Sanders v. Detroit Police Dep't, 490 Fed.Appx. 771 (6th Cir. 2012) (citing Heck, 512 U.S. at 487). In considering whether Heck bars a § 1983 claim, courts must examine the claims raised under § 1983 and the specific state offenses for which the plaintiff has been convicted. Baker v. Union Twp., Ohio, No. 1:12-CV-112, 2015 WL 2086597, at *4 (S.D. Ohio May 5, 2015). Thus, if success on Ms. Cannon's § 1983 excessive force claims would necessarily invalidate the underlying state conviction for resisting arrest, then Heck bars such claim.

         However, it is important to note the exception to the Heck bar that allows a suit to proceed if the underlying conviction is reversed, expunged, or invalidated (known as the “favorable termination” requirement). See S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 633, 637 (6th Cir. 2008) (“The requirement that the conviction or sentence has been reversed, expunged, or invalidated is analogous to the similar requirement in the tort of malicious prosecution and is called the “favorable termination” requirement of Heck”). In other words, application of the favorable termination requirement requires that the underlying state claim be terminated in a manner that is favorable to the plaintiff in order for that plaintiff to subsequently raise a § 1983 claim. The rationale for this rule is that habeas review should be the exclusive remedy for criminal defendants who do not obtain a favorable resolution to their underlying state offenses. Id. at 637.

         Typically, a conviction for resisting arrest in Ohio will necessarily invalidate a § 1983 claim of excessive force and therefore trigger the Heck bar. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 611 (6th Cir. 2014) (“a criminal conviction for resisting arrest in Ohio cannot stand where a criminal defendant successfully asserts the affirmative defense of pre-arrest excessive force; and a § 1983 claim of excessive force would necessarily imply the invalidity of an underlying conviction for resisting arrest”). By logical extension, a conviction for resisting arrest in Ohio then implicates the “favorable termination” requirement for a plaintiff to pass the Heck bar. Id. at 610 (“under Ohio's resisting arrest statute, that a claim of excessive force “falls squarely within the ‘favorable termination' rule of Heck [and such a] claim is a direct attack on the lawfulness of the underlying arrest-which [is] an essential element of [the] resisting arrest conviction.”) (quoting Jackim v. City of Brooklyn, No. 1:05 cv 1678, 2007 WL 893868, at *7 (N.D. Ohio Mar. 22, 2007)).

         However, in Powers v. Hamilton Cnty. Pub. Defender Comm'n, the Sixth Circuit found that “the favorable-termination requirement does not preclude § 1983 lawsuits by persons who could not have their convictions or sentences impugned through habeas review.” 501 F.3d 592, 600 (6th Cir. 2007). Stated differently, the Sixth Circuit “applied Powers to hold that Heck's favorable termination requirement does not apply where, due to the length of a sentence, a petitioner was unable to assert a habeas claim.” Hayward, 759 F.3d 601 at 610. In Hayward, the Sixth Circuit stated that the favorable termination requirement does not apply where § 1983 petitioners use pretrial diversion programs. Id. (“Powers logically extends to situations in which petitioners elect to participate in pretrial diversion programs to avoid trial and possible jail time”).

         In the case at bar, Ms. Cannon entered a pretrial diversion program to resolve the charge of resisting arrest. Thus, this Court cannot conclude that Ms. Cannon had a favorable termination to her charge of resisting arrest under Ohio law. However, to the knowledge of this Court, habeas review was not available to her and thus the favorable termination requirement of Heck is not applicable in this case. Because the favorable termination requirement is not applicable, Heck does not act as a bar for Ms. Cannon's constitutional claims. See D.D. v. Scheeler, No. 1:13-CV-504, 2015 WL 892387, at *8 (S.D. Ohio Mar. 3, 2015), aff'd, 645 Fed.Appx. 418 (6th Cir. 2016) (finding that Heck did not bar plaintiff's constitutional claim if the plaintiff entered a pretrial diversion program). This Court finds that Ms. Cannon's constitutional claims for excessive use of force may proceed.

         C. Qualified Immunity Analysis

         This Court next considers if Officers Meek and Green are entitled to qualified immunity. 42 U.S.C. § 1983 imposes civil liability on individuals who act under the color of state law and deprive a citizen of their constitutional rights. See Brousseau v. Haugen, 543 U.S. 194, 197-98 (2004). For a plaintiff to state a claim under § 1983 they must show: 1) their constitutional right(s) have been violated, and 2) a person acting under the color of state law caused the violation. Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015). There is not dispute as to the second prong of this analysis-that Officers Meek and Green were acting under the color of state law. However, Defendants do contest the first prong-Plaintiff's claim that her constitutional rights were violated and therefore argue that the doctrine of qualified immunity shields them from liability.

         The Defendants argue that Officers Meek and Green are entitled to qualified immunity because Ms. Cannon's rights were not violated by Officers Meek and Green. They contend that it is clearly established that officers can use escalated force on an individual they deem to be resisting arrest, and that Ms. Cannon's verbal hostility and arm movement during handcuffing constitutes resisting arrest and thus the takedown and strikes were warranted. Ms. Cannon counters that Officers Meek and Green are not entitled to qualified immunity because she was exposed to excessive force in violation of her constitutional rights. She contends that it is clearly established that an individual who is, at most, passively resisting arrest and poses little threat to law enforcement has a right to be free from a takedown and subsequent strikes.

         Qualified immunity protects government officials acting under the color of state law so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When analyzing a government official's claim of qualified immunity, the Court conducts a two-step analysis: 1) has the plaintiff alleged or shown facts evidencing a violation of a constitutional right, and 2) was the alleged violation of that constitutional right “clearly established” at the time of the incident. Stanfield v. City of Lima, 727 Fed.Appx. 841');">727 Fed.Appx. 841, 845 (6th Cir. 2018) (quoting Pearson, 555 U.S. at 232). If a plaintiff is to defeat a claim of qualified immunity, the court must answer the prior questions in the affirmative. Stanfield, 727 Fed.Appx. at 845.

         Thus, in evaluating whether qualified immunity protects Officers Meek and Green from Ms. Cannon's § 1983 claims for excessive force, this Court must first consider if Officers Meek and Green violated Ms. Cannon's constitutional rights. If they did so, this Court will then determine if those constitutional rights were clearly established at the time of the incident.

         1. Did Officer Meek or Officer Green Violate Ms. Cannon's Fourth Amendment Right by Using Excessive Force

         The facts in this case present a “he said, she said” scenario where the outcome largely depends on whose story one believes. In these types of situations, a jury is best equipped to decide which set of facts to believe. For this reason, and the reasons stated below, there are genuine issues of material fact regarding whether ...


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