Pineda v. Berry

          Dlott, J.

          REPORT AND RECOMMENDATIONS

          Stephanie K. Bowman United States Magistrate Judge

         This 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.

         I. RELEVANT FACTS^[1]

         On 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).

         Around 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).

         As Plaintiff was leaving, a security guard slapped him in the face, which chipped his tooth. (Doc. 76, Pineda Dep., at PageID 1285).^[2] 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).

         Mr. 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.

         A 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).

         Ms. 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.)

         Another 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).

         Hamilton 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., PageID 824-825).

         Sergeant 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 385).

         Officer 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.

         Thereafter, 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.

         After 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).

         Chief 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).

         Thereafter, this lawsuit ensued.

         A. Procedural Posture

         This 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.)

         On 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.)^[3]

         Plaintiff 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)).^[4] County Defendants then filed a Notice of Non-Consent under 28 U.S.C. ...