Lesowitz v. Tittle

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Before the Court is the motion to dismiss filed by defendants Roy Tittle (“Officer Tittle”) and Kevin Brown (“Officer Brown”). (Doc. No. 27 [“Mot.”].) Plaintiff Toni E. Lesowitz (“Lesowitz”) filed her opposition (Doc. No. 31 [“Opp'n”]), and defendants filed a reply (Doc. No. 32 [“Reply”]). For the reasons discussed herein, defendants' motion to dismiss is DENIED.

         I. BACKGROUND^[1]

         This § 1983 action arises from events that occurred in the early morning hours of October 16, 2015, near Pucci's Restaurant (“Pucci's”) at 2012 Tanglewood Avenue, Alliance, Ohio. (Doc. No. 25 (Re-Amended Complaint [“RAC”]) ¶ 8.) Around 1:30 A.M., Officers Tittle and Brown, of the Alliance Police Department, responded to a call concerning loud music coming from Pucci's. (Id.) Soon after arriving at the scene, Officer Brown cleared the call, reporting that Pucci's was “‘closed and quiet.'” (Id.)

         Around 2:01 A.M., while still parked in Pucci's parking lot, Officer Brown's point-of-view camera (“POV camera”) recorded Officer Brown exiting his cruiser and approaching Lesowitz and her companion Varlonous James (“James”). (Id. ¶¶ 9-11.) Officer Brown's POV camera recorded Officer Tittle talking with Lesowitz and James. (Id. ¶ 12.) Lesowitz explained that she was staying at the Holiday Inn across the street on State Street. (Id.) During this exchange, Officer Tittle instructed Lesowitz and James to leave the premises, removed his handcuffs, shook his handcuffs at Lesowitz and James, and said, “Stop running your mouth and walk.” (Id.)

         After this exchange, Officer Brown's POV camera recorded Lesowitz and James crossing Tanglewood Avenue and walking towards the Holiday Inn on State Street. (Id. ¶ 13.) No. vehicles were traveling in either direction on State Street as Lesowitz and James walk westbound along State Street and as they crossed to the north side of State Street. (Id. ¶¶ 13, 15.)

         At approximately 2:03 A.M., Officer Brown's front dash-camera video recorded Officer Tittle reversing his vehicle and leaving Pucci's parking lot. (Id. ¶ 16.) Officer Brown entered his own cruiser and followed Officer Tittle. (Id.) Both vehicles made right-hand turns out of Pucci's parking lot, traveled north on Tanglewood Avenue, and stopped at a flashing red traffic signal at the intersection of Tanglewood Avenue and State Street before they both made left-hand turns on State Street towards the Holiday Inn. (Id.) As Officer Tittle pulled into the intersection, a vehicle was recorded traveling westbound on State Street. (Id.) This was the only vehicle seen traveling on State Street during the time of the alleged incident. (Id.)

         At 2:03:16 A.M., Officer Tittle's cruiser's dash-camera video recorded him activating his emergency lights and sirens as he pulled over to the north side of State Street in front of Butler Rodman Park. (Id. ¶ 18.) Thereafter, Officer Tittle exited his crusier, walked around the rear of the vehicle, and approached Lesowitz and James, who were still walking westbound along State Street towards the Holiday Inn. (Id.) Officer Tittle then handcuffed Lesowitz. (Id.)

         Alliance Police Department's Arrest Records indicate that Lesowitz was charged with disorderly conduct-intoxication-persistence and obstructing official business. (Id. ¶ 19.) The Alliance Police Incident/Offense Report signed by Officer Tittle and a reviewing supervisor stated:

On 10/16/2015 Toni Lesowitz (defendant), was arrested in the 2300 block of W. State Street. Alliance, Stark County, Ohio, the defendant, while voluntarily intoxicated causing a condition that was placing herself in danger, she was found to be highly intoxicated and yelling in the parking lot of Pucci's restaurant, she was advised to continue on her way and stop yelling, she continued with a subject, Varlonous James Jr., who was going to help her walk to the Holiday Inn, while in the street she began yelling and pulling away from Mr. James, who was attempting to assist her out of the road where cars were coming westbound towards them. This was in the 2300 block of W. State Street. Alliance, Stark County, Ohio, a high speed roadway.

When re-contact she was placed into handcuffs and was arrested for Disorderly Conduct by Intoxication with persistence. The defendant refused to provide information, and would only say she is a PhD at Mount Union. Additional charge of Obstructing Official Business was added. The defendant was transported to Stark County Jail on double bond for being from out of state.

(Id. ¶ 20.)

         Upon arrest, Officer Tittle put Lesowitz in the back seat of his police cruiser. (Id. ¶ 24.) At approximately 2:08 A.M., two other Alliance police officers, Officers Cioci and Johnson, arrived on the scene. (Id.) Around this time, Lesowitz asked for the police cruiser's rear door to be opened and began kicking the inside of the police cruiser. (Id.) At 2:08:57 A.M., Officer Tittle's cruiser's rear dash-camera video captured Officer Tittle grabbing Lesowitz, pulling her from the cruiser, slamming her on the cruiser's trunk, and putting “shackles” on her ankles. (Id.)

         At 2:11:20 A.M., Officer Tittle returned Lesowitz to the rear passenger-side seat of his police cruiser. (Id. ¶ 25.) Officer Tittle's cruiser's rear dash-cam video then captured Officer Cioci enter the cruiser through the rear driver-side door and place Lesowitz in a temporary choke hold. (Id.) Lesowitz could be heard gasping for air and moments later could be heard saying, “Stop choking me, stop choking me.” (Id.)

         At 2:35:40 A.M., Officer Tittle arrived at the Alliance Police Department with Lesowitz still in custody in the rear seat of Officer Tittle's cruiser. (Id. ¶ 28.) Until approximately 2:53 A.M., Officer Tittle's cruiser's dash-camera video and Officer Brown's POV camera recorded Lesowitz during her custody at the Alliance Police Department. (Id. ¶ 29.) During these recordings, Lesowitz appeared alert and conversive. (Id.) Around 2:53 A.M., Officer Brown manually turned off his POV camera even though Lesowitz was still in custody at the Alliance Police Department, leaving a gap of approximately fifty (50) minutes, for which there is no video documenting Lesowitz's custody at the Alliance Police Department. (Id. ¶¶ 30-31.)

         When Officer Brown's POV camera was reactivated, Lesowitz was unconscious and slumped over in a restraint chair. (Id. ¶ 32.) Officer Brown roused Lesowitz who appeared incoherent, disoriented, and injured. (Id.)

         Around 3:45 A.M., Lesowitz was led to Officer Tittle's cruiser for transport to the Stark Count Jail. (Id. ¶¶ 32-33.) The Stark Count Jail ...