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Smith v. City of Troy

United States Court of Appeals, Sixth Circuit

November 1, 2017

Victor L. Smith, Plaintiff-Appellant,
City of Troy, Ohio; Miami County, Ohio; P.M. Osting; S.A. Gates; H. Hohenstein; C.A. Madigan, Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:15-cv-00054-Thomas M. Rose, District Judge.

          Bryan K. Penick, Joseph E. Zeis, Jr., SEBALY, SHILLITO & DYER, Dayton, Ohio, for Appellant.

          Edward J. Dowd, Kevin A. Lantz, SURDYK, DOWD & TURNER CO., L.P.A., Dayton, Ohio, for Appellees City of Troy, Gates, Hohenstein, and Madigan. Daniel T. Downey, Paul M. Bernhart, FISHEL HASS KIM ALBRECHT DOWNEY LLP, Columbus, Ohio, for Appellees Miami County and Osting.

          Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.


          PER CURIAM.

          Victor L. Smith, represented by counsel, appeals the district court's judgment granting summary judgment to the defendants on his claims under 42 U.S.C. § 1983 and Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132. The parties have waived oral argument, and the panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

         Smith has epilepsy. On the morning of February 11, 2014, he began experiencing a seizure while driving in Troy, Ohio. Smith steered his car into a yard located at 449 Glendale Avenue, exited the car, and walked a few houses away. A neighbor called the police to report that Smith was involved in suspicious activity. Miami County Deputy Sheriff Phillip M. Osting was the first to arrive at the scene. Osting observed Smith grasping a waist-high chain-link fence, swaying back and forth. Smith's pants were down around his knees, revealing his white longjohns, and he was yelling out, "Baby." Osting identified himself and asked Smith to return to his car to discuss the incident. Smith did not respond and kept yelling, "Baby." Although it was cold, Osting noticed that Smith was sweating. Osting thought that Smith was under the influence of something by the way Smith was acting. Osting placed his hand on Smith's right hand, which was grasping the fence, and his other hand on Smith's back, and again asked Smith to return to his car. Osting felt Smith tense up, and so he began to peel Smith's fingers from the fence. Once Osting pried Smith's fingers from the fence, Smith pulled his arm away. Osting then took Smith to the ground with a leg sweep. Smith hit the ground facedown and Osting fell on top of him.

         Osting had control of Smith's right arm and was struggling to gain control of Smith's left arm. After Osting wrestled with Smith for 30 seconds to a minute, Troy Police Officer Scott Gates arrived on the scene. Gates drew his taser and ordered Smith to put his hands behind his back. Smith looked at Gates blankly but did not comply. Gates put his taser in drive-stun mode and tried to grab Smith's left arm. Smith moved his arm underneath his body. Gates then applied the taser to Smith's upper-back and lower-neck area. By that time, Troy Police Officers Hans Hohenstein and Chris Madigan had arrived on the scene and grabbed Smith's legs, allowing Osting to gain control of Smith and handcuff him. The data recorder on Gates's taser later showed that he had deployed it eight times, for a total of 48 seconds, during an encounter with Smith that lasted less than two minutes. None of the officers ever informed Smith that he was under arrest.

          Smith testified that he drifted in and out of lucidity during the incident. He remembered the onset of the seizure, leaving the road, honking his horn for help, and exiting the car. He remembered trying to support himself on the fence, encountering Deputy Osting, telling Osting he was sick and having a seizure, and being taken to the ground. Smith did not remember struggling with the officers or being tased. Smith thought that he came out of the seizure when he was on the ground but then had another seizure and did not wake up until he was in an ambulance on the way to the hospital. Smith claimed that he has post-traumatic stress disorder as a result of the incident.

         Smith filed a complaint against the City of Troy; Miami County, Ohio; Deputy Osting; and Officers Gates, Hohenstein, and Madigan under § 1983 and under Title II of the ADA. Smith sued the individual law enforcement officers in their official and individual capacities, claiming that they violated his Fourth Amendment rights by using excessive force against him and by failing to intervene to protect him against the allegedly excessive force employed by the other officers. Smith claimed that the City of Troy and Miami County were responsible for their respective officers' allegedly unconstitutional conduct under theories of ratification, negligent hiring and retention, and failure to train. Smith also claimed that the City of Troy's and Miami County's alleged failure to train its law enforcement officers properly on confronting and attending to persons with disabilities denied him the benefit of law enforcement services, in violation of Title II of the ADA. Finally, Smith asserted state-law claims against the defendants for assault and battery and for intentional infliction of emotional distress.

         The district court granted summary judgment to the defendants on Smith's federal civil rights claims. As to Smith's excessive-force claims, the district court concluded that the officers used measured force in response to Smith's defiance of their orders and reaching where the officers could not see his hands. The district court held, therefore, that the officers did not use excessive force as a matter of law. The district court concluded further that even if the individual officers did use excessive force, they were entitled to qualified immunity under the facts of the case. The district court held that the municipal defendants could not be liable under § 1983 without an underlying constitutional violation. The district court concluded further that Smith's § 1983 claims against the municipal defendants failed because he did not produce evidence of a pattern of constitutional violations by their law enforcement officers. The district court granted the defendants summary judgment on Smith's ADA claim because the officers did not take action against Smith because of his disability. After granting the defendants summary judgment on Smith's federal claims, the district court declined to exercise supplemental jurisdiction over his state-law claims and dismissed them without prejudice. Smith's timely appeal followed.

         We review de novo a district court's order granting summary judgment. See Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). Summary judgment is appropriate "if the movant shows that 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). A court reviewing a summary judgment motion must draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         I. Individual Liability Under § 1983

         The Fourth Amendment prohibits law enforcement officers from using excessive force when making an arrest. See Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). In order to comply with the Fourth Amendment, an officer's use of force must be objectively reasonable under the totality of the circumstances. See Kent v. Oakland Cty., 810 F.3d 384, 390 (6th Cir. 2016). In evaluating whether a police officer used excessive force on a particular occasion, the court must view the situation from the perspective of a reasonable officer on the scene at the time and without the benefit of 20/20 hindsight. See id. To determine whether the officer's use of force was reasonable, the court must consider the ...

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