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.
from the United States District Court for the Southern
District of Ohio at Dayton. No. 3:15-cv-00054-Thomas M. Rose,
K. Penick, Joseph E. Zeis, Jr., SEBALY, SHILLITO & DYER,
Dayton, Ohio, for Appellant.
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
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).
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.
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
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.
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.
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
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).
Individual Liability Under § 1983
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 ...