United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATIONS
Stephanie K. Bowman United States Magistrate Judge
civil rights action is before the Court on Defendants'
motions for summary judgment (Docs. 97, 106) and the
parties' responsive memoranda (Docs. 115, 116). Upon
careful review, the undersigned finds that Defendants'
motions for summary judgment are well-taken.
November 10, 2013, around 10:00 pm or 11:00 pm, Plaintiff
arrived at the Inner Circle Club. (Doc. 76, Pineda Dep.,
PageID 1276). The Inner Circle Club is a nightclub in the
East End of Cincinnati, Ohio. On Saturdays, the Inner Circle
promoted “Hispanic Night”, where the club played
Latin music. Security inside the club was provided by
civilian bouncers and outside security was provided by an
off-duty detail agreement between the club and Hamilton
County Sheriff's Office (“HCSO”). (Doc. 95,
Cotton Dep., PageID 1433-34).
2:30 am, shortly before the club was supposed to close, a
dispute broke out in the club and bouncers started pushing
people out of the club. (Doc. 74, Gomez Dep., PageID 1255-56;
Doc. 114, Igwebe Dep., PageID 2006-09). Mr. Pineda was not
involved in any fighting inside or outside the club. (Doc.
76, Pineda Dep., PageID 1286; Doc. 75, Hernandez Dep., PageID
1264; Doc. 73, Avila Dep., PageID 1248).
Plaintiff was leaving, a security guard slapped him in the
face, which chipped his tooth. (Doc. 76, Pineda Dep., at
PageID 1285). Plaintiff described the man who chipped
his tooth as “black.” (Id. at 1287).
Plaintiff then states he was struck in the back of the head
by an individual, who he says was a Hamilton County
Sheriff's Deputy. (Id. at 1286).
Pineda was transported to UC Hospital where he received
medical treatment. (Pineda Dep., PageID 1286). Mr. Pineda
sustained a severe head injury. (Pineda Dep., PageID 1289-90;
Ex. 1, PageID 1292). He testified that he has no memory from
the time he was struck until waking up at University of
Cincinnati Hospital. (Doc. 76 at PageID 1286). His last
memory was of the slap in the face by the Inner Circle
security guard. Id.
friend of Plaintiff, Juana Elia Gomez, was at the Inner
Circle Club the night of the incident. (Doc. 74 at PageID
1254). Plaintiff stated he had spoken with Ms. Gomez since
the incident and told her that a Sheriff from Hamilton County
had “beaten me up or hit me.” (Doc. 76, Pineda
Depo, at PageID 1284).
Gomez says she saw the whole incident of Plaintiff being
injured, but did not see the Inner Circle Security Guard slap
him in the face. (Doc. 74, Gomez Depo, at PageID 1257). Ms.
Gomez stated that “suddenly and without
provocation” the deputy drew his baton from his belt
and struck Plaintiff from behind. (Doc. 96, Exh. 1, Gomez
Affidavit at paragraph 6). Thereafter, Gomez testified that
Plaintiff fell to the ground unconscious. (Doc. 74, Gomez
Dep., at PageID 1257). Ms. Gomez attempted to perform CPR on
Mr. Pineda but a Sherriff's deputy pushed her away. (Doc.
96, Exh. 1). No. law enforcement personnel attempted to
provide him any assistance. (Id.)
friend of Plaintiff, Luis Avila, also states that he was
present at the Inner Circle Club on November 10, 2013 and
that he witnessed the incident. (Doc. 73, Avila Depo, at
PageID 1248). Avila witnessed someone, not sure if it was
security or a police officer, hit Plaintiff on the back of
the head. (Doc. 73, Avila Depo, at PageID 1249). Avila
further stated in a sworn affidavit, “I did not hear
the deputy say anything to Ali Pineda, nor did I hear Ali
Pineda say anything to the deputy before the deputy struck
him.” (Doc. 96, Ex. 2, Avila Affidavit at paragraph 7).
Additionally, Pineda's friend Ricardo Andino saw a
“dark skinned Sheriff” strike Mr. Pineda. (Doc.
72, Andino Depo. at PageID 1241).
County Sheriff's Deputies William Cotton, Gene Nobles and
Roy Berry were working an off-duty detail on November 10,
2013 at the Inner Circle Club. (Doc. 95 Cotton Dep., PageID
1431). Deputy Cotton and Deputy Berry are African American
and Deputy Nobles is Caucasian. (Id. at PageID
1440). Officers working off-duty details are paid directly by
the entity requesting their presence and not the Hamilton
County Sheriff's Office. (Doc. 65, Schoonover Dep.,
Darryl Morton, of the Cincinnati Police Department
(“CPD”), was working District 2 on the night of
the incident. (Doc. 60, Morton Dep., PageID 413). At
approximately 2:43am a dispatch came over the radio from the
Hamilton County Sheriff's Office requesting the
assistance of the CPD. (Id. at PageID 413-414).
Sergeant Morton arrived quickly thereafter. (Id. at
PageID 420). Upon his arrival, the Cincinnati Fire Paramedics
were already at the scene treating Mr. Pineda. (Id.
at PageID 423). Mr. Pineda was transported to the hospital by
ambulance. Officer Gramke, of the Cincinnati Police
Department, prepared an incident report based upon statements
made by Plaintiff at UC Hospital. (Doc. 59, Ex. 1 at PageID
Stephanie Bellamah was assigned to follow up on the National
Incident-Based Reporting System (“NIBRS”) report
of the incident prepared by Sergeant Gramke. (Doc. 59,
Bellamah Dep., PageID 335). The NIBRS Report initially
prepared by the Sergeant Gramke states, “Victim states
the bouncer at the Inner Circle Bar assaulted him in the
mouth for no reason causing a tooth to be chipped. Report was
taken at UC Hospital by detail officer. Victim stated he
consumed 7-8 Beers. Hamilton County Deputies were also on the
scene.” (Doc. 59-1 at Page ID 385). There is no mention
in this initial Incident Report that Plaintiff told the
Cincinnati Police Department he was struck by a Hamilton
County Deputy. Id.
Officer Stephanie Bellamah spoke with Mr. Pineda, but was
unable to determine how Mr. Pineda was injured as he was not
able to identify which individual struck him. (Doc. 59,
Bellamah Dep., PageID 370). Mr. Pineda provided a typed
statement in Spanish with an accompanying hand-written
translation in English to Officer Bellamah. (Id. at
338-339). Officer Bellamah informed her supervisor that an
allegation was made that a sheriff deputy struck Mr. Pineda.
(Id. at 344). Thereafter, the statement provided by
Mr. Pineda was provided to the HCSO.
receiving a copy of Mr. Pineda's hand-written translation
of his statement, Chief Deputy Schoonover assigned the matter
to the Internal Affairs Unit for investigation. (Doc. 65,
Schoonover Dep., Page ID 383, see also Doc. 59-2 at PageID
390). Officer Minnick investigated the report. He states that
he was not able to contact Mr. Pineda because no contact
information was provided to him. Because he did not have
enough information to move forward with the investigation, he
recommended that he remain open. (Doc. 63-1).
Deputy Schoonover, as the final decision maker in the
Sheriff's Office with respect to accepting the completion
or conclusion of an investigation, concluded the
investigation should remain open until more evidence could be
located. (Doc. 65, Schoonover Dep., PageID 889).
this lawsuit ensued.
case has a long and abnormal procedural history.
Plaintiff's original five-count Complaint was filed on
October 26, 2015. (Doc. 1.) Mr. Pineda originally sued
Hamilton County, Hamilton County Sheriff James Neil, the
Hamilton County Sheriff's Office, Hamilton County Deputy
Sheriffs Raymond Berry, William Cotton, and Gene Nobles, PNA,
Inc. doing business as Inner Circle, and Cincinnati Police
Officer Jeffrey Gramke. (Id. at PageID 3-4
(¶¶ 6-14).) Count 1 alleged excessive use of force
and a failure to protect in violation of Section 1983 against
the County Defendants. (Id. at PageID 8-9
(¶¶ 32-37).) Counts 2, 3, and 4 alleged
conspiracies in violation of Section 1983 and 42 U.S.C.
§ 1985(3) between Deputy Sheriffs Berry, Cotton, and
Nobles and Cincinnati Police Officer Gramke to deny Plaintiff
equal protection of the law on account of his race (Hispanic)
and national origin (Honduran). (Id. at PageID 9-11
(¶¶ 38-53).) Count 5 alleged negligence against
County Defendants and Inner Circle. (Id. at PageID
11 (¶¶ 54-57).) On March 14, 2016, Senior United
States District Judge Sandra S. Beckwith granted the County
Defendants' Rule 12(b)(6) motion to dismiss the
Complaint, leaving PNA and Cincinnati Police Officer Gramke
as the remaining Defendants. (See Doc. 13.) Counsel
for Plaintiff and counsel for Police Officer Gramke
thereafter consented to the jurisdiction of the undersigned
pursuant to 28 U.S.C. § 636(c) in the Rule 26(f) Joint
Discovery Plan they filed on April 4, 2016 (Doc. 15.)
April 11, 2016, Plaintiff filed a motion, pursuant to Rule
15(a), asking for leave to amend his Complaint with respect
to his excessive use of force claim against Deputy Sheriffs
Berry, Cotton, and Nobles and for leave to add a claim
against the same deputies under Section 1983 for failure to
provide adequate medical care; and, pursuant to Rule 59(e),
asking the Court to amend its judgment to reinstate his
excessive use of force claim against all County Defendants.
(Doc. 22.) After hearing oral argument, the undersigned
granted Plaintiff's motion to amend from the bench.
(See 06/23/2016 Minute Entry.)
timely filed his six-count Amended Complaint on July 6, 2016.
(Doc. 29.) Counts 1, 2, and 3 alleged excessive use of force,
a failure to protect, and a failure to provide medical
assistance against Deputy Sheriffs Berry, Cotton, and Nobles.
(Id. at PageID 154-55 (¶¶ 30-35)). Counts
4 and 5 alleged a failure to supervise and ratification as to
the deputy sheriffs' excessive use of force against the
Hamilton County Sheriff's Office and Sheriff Neil.
(Id. at PageID 155-56 (¶¶ 36-42)). Count 6
alleged a claim of negligence against PNA. (Id. at
PageID 156 (¶¶ 43-45)). County Defendants then filed
a Notice of Non-Consent under 28 U.S.C. ...