United States District Court, N.D. Ohio, Eastern Division
TONI E. LESOWITZ, PLAINTIFF,
v.
ROY TITTLE, et al., DEFENDANTS.
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.
ΒΆΒΆ 32-33.) The Stark Count Jail ...