United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT
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
IN PART AND DENIED IN PART.
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).
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
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).
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).
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).
STANDARD OF REVIEW
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.
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”).
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.
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.
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.
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.
Abandonment of Fabrication of Evidence Claim
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)).
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
The Heck v. Humphrey Hurdle
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. (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.
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.
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.
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)).
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”).
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.
Qualified Immunity Analysis
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.
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
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.
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.
Did Officer Meek or Officer Green Violate Ms. Cannon's
Fourth Amendment Right by Using Excessive Force
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 ...