This civil rights action was brought by Plaintiff Neil Degolia after he was arrested
The Complaint contains the following six counts:
Count I: Violation of the federal and state constitutional prohibition against the "use of excessive force" by virtue of the deputies' conduct in the booking area.
Count II: Violation of the federal and state constitutional protection against the "use of excessive force" and "cruel and unusual punishment" as a result of the deputies' use of the restraint chair.
Count III: State-law negligence.
Count IV: Assault and battery under state law.
Count V: Intentional and negligent infliction of emotional distress.
Count VI: Respondeat superior as the basis for imposing liability on Kenton County, Kenton County Fiscal Court, and Kenton County Detention Center.
This matter is now before the Court on several motions that all boil down to cross-motions for summary judgment. Those motions are as follows: (1) Defendants' joint motion for summary judgment on all claims (Doc. 61); (2) Plaintiff's cross-motion for summary judgment on the issues of qualified immunity and the use of excessive force (Doc. 63); (3) Defendants' joint motion to strike plaintiff's motion for summary judgment (Doc. 64); (4) Plaintiff's motion for an extension of time to file a dispositive motion (the previously filed Doc. 63) or deny Defendants' motion to strike (Doc. 67); and (5) Plaintiff's motion for leave to file an affidavit as a surreply to the motion to strike (Doc. 74). The Court previously heard oral argument on the parties' motions and took the matter under submission. (Doc. 77).
For the reasons that follow, the Court will GRANT IN PART and DENY IN PART Plaintiff's motion for summary judgment, and GRANT IN PART and DENY IN PART Defendants' motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In this case, the material facts of the events in question were captured by several video recording devices. Thus, heeding the instruction of the Supreme Court and Sixth Circuit, the Court "view[s] the facts in the light depicted by the videotape[s]" as set forth below, Scott v. Harris ,
A. Arrest
Beginning late in the evening on March 4, 2017, Degolia drank approximately four tall draft beers at a bar in Covington, Kentucky, the last of which was ingested around 2:00 AM on March 5. (Doc. 61-3, Degolia Dep. at 66). Degolia then walked to a nearby pizza restaurant. Id. at 61-66. According to Degolia, he was waiting in line when the staff ordered everyone out due to a disagreement that had erupted between an employee and a woman standing in front of Degolia. Id. at 63-65, 70-71.
Once outside the restaurant, Degolia was confronted by police officers at approximately 2:40 AM. (Doc. 1, ¶ 10); (Doc. 61-2). Body camera footage shows an officer
Degolia was cited for public intoxication. (Doc. 1, ¶ 10); (Doc. 61-2). The citation states that Degolia "was extremly [sic] intoxicated" and "unsteady on feet" and had "slurred speech" and "bloodshot watery eyes." (Doc. 61-2).
B. Sally Port at the Detention Center
Video surveillance (without any audio) shows Degolia arriving at the sally port around 3:03 AM, accompanied by two officers. (Doc. 54, Sally 4 at 3:03:41-55).
Before entering the booking area, Degolia was searched in an enclosed vestibule between the sally port and the booking area. At 3:07 AM, surveillance footage shows a deputy leading Degolia in handcuffs into the vestibule without conflict, after which Degolia's handcuffs are removed. (Doc. 54, Booking Search at 3:07:32-54). The intake deputy seen conducting the search is Defendant Aaron Branstutter. (Doc. 61-4, Branstutter Dep. at 50-51). At the time, Branstutter had been an employee for just shy of seven months. See id. at 25. Branstutter stands about 5'8" and weighs 225 pounds. Id. at 20. Degolia is 6'0" and weighs roughly 210 pounds. (Doc. 61-3 at 54).
In the search vestibule, the video shows Degolia remove his belt, shoes, and something from his wrist, and place his hands on an adjacent wall according to Branstutter's directions. (Doc. 54, Booking Search at 3:07:54-3:09:29). Branstutter then searches Degolia without incident. Id. at 3:09:29-3:10:23. Degolia is shown exiting the search vestibule where Branstutter remained. (Doc. 54, Booking Search at 3:10:23-34). Although Degolia had just been charged with public intoxication, a fact Branstutter was aware of at the time, (Doc. 61-4 at 68), Branstutter reported on the intake assessment form he completed that Degolia did not engage in any assaultive or violent behavior . (Doc. 1-1); (Doc. 1, ¶ 11).
C. Takedown and Restraint in the Booking Area
Surveillance footage shows Degolia enter the booking area at 3:10 AM, without
Shortly thereafter, Defendant Michael Crouthers is seen entering the booking area and stands a few feet behind Degolia. (Doc. 54, Booking Admin Pt. 1 at 3:11:07- 14). Less than two minutes later, Degolia turns and appears to say something to Crouthers, and then casually sits down in a chair in front of the booking counter. Id. at 3:12:41-54. Beatty testified that prior to Degolia sitting down she was asking him medical questions when Degolia told Beatty that he wanted to talk to his attorney and did not want to answer any more questions. (Doc. 61-5 at 53, 56). As a result, Beatty suspended Degolia's booking, told him to sit down, and called out the situation to those on the floor. Id. at 53, 60-61, 65. Beatty testified that Degolia did not yell at her, did not "cuss" at her, did not engаge in "violent behavior," and did not do anything disruptive toward her or anyone else in the booking area. (Doc. 61-5 at 83-84, 90-93, 95).
For the next two minutes, the video shows Degolia sitting in a chair with his arms folded across his chest as Crouthers moves about the booking area. (Doc. 54, Booking Admin Pt. 1 at 3:13:07-3:15:07).
According to the surveillance footage, at approximately 3:16 AM Defendant Branstutter enters the booking area from the search vestibule and touches Degolia's shoulder on the way to delivering some paperwork to the booking counter. Id. at 3:16:00-04. Branstutter, thereafter, pauses next to Degolia and there is a brief exchange of inaudible words. Id. at 3:16:04-14.
The next one and one-half minutes of surveillance footage capture events giving rise to this lawsuit. Id. at 3:16:18-3:17:39. At the beginning, Crouthers is seen walking toward the surveillance camera near where Degolia is sitting. Id. at 3:16:18-20.
Within a split second, Branstutter quickly grasps Degolia's neck with his right arm in a headlock-type chokehold and forcefully slings Degolia to the left and onto the floor. Id. at 3:16:26-30. Because Crouthers was busy setting his paperwork down on the booking counter, his reaction is slightly delayed as he scrambles to reach for Degolia on the floor. Id.
As Branstutter and Degolia come down on the floor, Branstutter is positioned on top and still has Degolia in a headlock with his right arm. Id. Less than a second elapses before Branstutter begins using his left hand in a closed fist to strike Degolia two to three times in the head region. Id. at 3:16:30-31; id. at 3:16:31-35. With both deputies on top of Degolia trying to restrain him, Branstutter then delivers at least four more closed-fist blows to Degolia's head. Id. at 3:16:35-41. A struggle ensues with Degolia on his knees and the deputies on top, but Branstutter maintains the headlock on Degolia as each deputy wrestles to grab hold of one of Degolia's arms. Id. at 3:16:40-54. Degolia eventually breaks free of Branstutter's headlock, but the two deputies remain on top of Degolia as they struggle to handcuff him. Id. at 3:16:54-3:17:01.
At that moment, Defendant Armstrong enters the booking area, walks to where
The incident report Sergeant Landrum later completed states that he was "contacted by Deputy Branstutter via institutional radio to report to booking for Inmate being [sic ] disruptive and failing to follow deputy instructions." (Doc. 1-3). Indeed, Branstutter testified as well that he called for Landrum over the radio prior to the takedown. (Doc. 61-4, Branstutter Dep. at 85-86).
D. Inside Cell B2
Degolia is next seen on video surveillance in another area of the KC Detention Center аs he is led to booking cell B2 by Crouthers and Branstutter, with Armstrong and Landrum in tow. (Doc. 54, Booking Cells Pt. 1 at 3:17:44-49); (Doc. 61-4 at 111; Doc. 61-7 at 71). A different segment of video footage taken from a handheld device (which includes audio) shows Degolia inside the cell, kneeling with his hands cuffed behind his back. Landrum is standing at Degolia's side while Crouthers is holding Degolia's arms slightly elevated behind his back and exerting downward pressure on Degolia's neck. (Doc. 54, Degolia Safety Chair at 0:00:00-06). For nearly a minute Degolia is not resisting but is lamenting about what just occurred in the booking area. Id. at 0:00:06-53.
Degolia asks Crouthers to "let go," and when Crouthers does not comply with the request, Degolia begins to shout, curse, and struggle. Id. at 0:00:53-1:06. Crouthers and Landrum assist Degolia to his feet and walk him to the "Safety Chair" stationed outside the cell. Id. at 0:01:06-26.
E. The "Safety Chair"
Both Crouthers and Branstutter testified that it was Landrum's decision to place Degolia in the Safety Chair. (Doc. 61-7 at 35-36, 72-73; Doc. 61-4 at 111-12). Outside Degolia's cell, Branstutter and Crouthers are shown securing Degolia in the Safety Chair with straps at seven points of contact. (Doc. 54, Degolia Safety Chair at 0:01:26-0:04:21); (Doc. 61-4 at 112-12; Doc. 61-7 at 73-75, 91). Degolia's left eye is already beginning to swell. There is some taunting and jeering from Degolia and at one point, Degolia turns his head to Crouthers and threatens to "snap your head right off your fucking shoulders." (Doc. 54, Degolia Safety Chair at 0:01:34-50).
The deputies are able to secure Degolia in the chair without incident. Nurse Gurren then appears in the frame, checks each point of contact on the restraints, and signals her approval. (Doc. 54, Degоlia Safety Chair at 0:04:26-41); (Doc. 61-7 at 91; Doc. 61-4 at 46, 115). With Degolia secured in the Safety Chair, overhead surveillance footage shows that Degolia was wheeled into cell B2 at 3:23 AM. (Doc. 54, Booking Cells Pt. 1 at 3:23:05-3:24:57); (Doc. 61-7 at 91; Doc. 61-4 at 112-13).
While Landrum is in the cell with Degolia, Branstutter can be seen on surveillance footage from outside the door rubbing and stretching his left hand-the same hand used moments before to strike Degolia repeatedly in the face. (Doc. 54, Booking Cells Pt. 1 at 3:24:30-48). Degolia remained in the restraint chair for just over two hours, until, as Degolia alleges and records confirm, Degolia was released
Beginning at 5:36 AM, Degolia completed his booking paperwork, (Doc. 54, Booking Admin Pt. 2 at 5:36:33-5:44:02), and was photographed and fingerprinted, (Doc. 54, Booking Print Pt. 1 at 5:44:14-5:51:25), all without any altercation. Degolia was released that same day and is seen on surveillance video exiting the KC Detention center at 12:35 PM. (Doc. 54, Vestibule C20 at 12:35:23-27); (Doc. 61-7 at 108).
Degolia suffered a black eye, (Doc. 1-5), and he alleges jaw injuries, a cracked molar, and emotional trauma, as well as some residual soreness from the restraint cuffs on the Safety Chair that lasted for a month after the incident. (Doc. 1, ¶¶ 33, 41, 52-57); (Doc. 61-3 at 23, 45, 112). This lawsuit followed on December 14, 2017.
LEGAL STANDARD
Summary judgment under Rule 56 is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fаct and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett ,
"The summary judgment standard does not change simply because the parties presented cross-motions." Profit Pet v. Arthur Dogswell, LLC ,
The Supreme Court, however, has "clarified the summary-judgment standard for excessive-force claims, rejecting the argument that the question of objective reasonableness is 'a question of fact best reserved for a jury.' " Dunn v. Matatall ,
I. Procedural Matters
Before turning to the merits of the case, some housekeeping is required to frame the procedural posture of this matter.
A. Degolia's Untimely Cross-Motion for Summary Judgment
The problem here is that Degolia's response in opposition to Defendants' motion for summary judgment was also captioned as a cross-motion for summary judgment (Doc. 62), and was filed nearly two weeks after the deadline for dispositive motions. (Doc. 60). The Clerk of Court noted the error in the docket and re-filed the same materials as Degolia's cross-motion for summary judgment. (Doc. 63). This, in turn, led to the host of motions now before the Court.
Having considered the matter, the Court will grant Degolia's motion for leave to file an affidavit as a Surreply to the motion to strike (Doc. 74), deny Defendants' motion to strike (Doc. 64), and grant Degolia's subsequent motion to extend the deadline to file a dispositive motion (Doc. 67).
Therefore, Degolia's cross-motion for summary judgment (Doc. 63) is timely and appropriately before the Court. This does not result in any prejudice to Defendants because Degolia moved for summary judgment only as to the issues of qualified immunity and the use of excessive force. These same issues were fully briefed by the parties on Defendants' motion for summary judgment and are "pure question[s] of law" when video footage establishes the relevant material facts. See, e.g. , Scott ,
B. Degolia's Amended Complaint
On May 6, 2019, Degolia filed an Amended Complaint, alleging a " Monell -style municipal liability claim against the Kenton County Fiscal Court." (Doc. 78, ¶ 85). Previously, at oral argument, Degolia's counsеl had suggested they might amend the Complaint to add such a claim and the Court indicated that the amendment would be permitted. After further consideration, however, the Court concludes otherwise.
The time period for amendments has passed, and thus "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(1)-(2). Although a court "should freely give leave [to amend a complaint] when justice so requires," it is within a district court's discretion to permit the amendment. Tucker v. Middleburg-Legacy Place, LLC ,
Degolia, however, is not prejudiced by this result. As explained infra Part III, Degolia's Complaint effectively alleged a Monell claim by virtue of having sued the individual Defendants in their official capacity. Degolia has simply failed to develop his § 1983 claims against the named municipality and its subdivisions. But justice does not require another period of discovery and a second bite at the apple.
Accordingly, the Amendment Complaint tendered to the Court (Doc. 78), will be stricken from the record.
II. § 1983 CLAIMS (COUNTS I & II) - INDIVIDUAL LIABILITY
Degolia brings Counts I and II of the Complaint under
A. Legal Framework
1. Qualified Immunity
"Once raised, it is the plaintiff's burden to show that the defendants are not entitled to qualified immunity." Burgess v. Fischer ,
2. Excessive Force
"An excessive-force claim may arise under the Fourth, Eighth, or Fourteеnth Amendments depending on 'whether the plaintiff was a free citizen, convicted
"Fourth Amendment protections, including those against excessive force, 'continue during booking' and at all times 'prior to a probable-cause hearing.' " Hanson v. Madison Cty. Det. Ctr. ,
Whether a particular use of force was objectively reasonable "turns on the 'facts and circumstances of each particular case.' " Kingsley ,
Against this backdrop, the "totality of the circumstances" must be evaluated. Graham ,
In the end, the litmus test is whether, on balance, an act of " 'gratuitous violence' has been inflicted," See Coley v. Lucas Cty., Ohio ,
B. Analysis: The Deputies' Use of Force
Because this case involves multiple uses of force, the reasonableness of the individual Defendants' actions must be analyzed "in chronological 'segments." See, e.g. , Hanson ,
This case involves the actions of Defendants Armstrong, Crouthers, and Branstutter, each with varying roles in four discrete uses of force: (1) the initial takedown and restraint in the booking area (including the use of a chokehold and closed-fist strikes immediately following the takedown); (2) the events immediately following in cell B2; (3) the use of the restraint chair; and (4) the extended use of the restraint chair for more than two hours.
In evaluating the circumstances, "where, as here, there is 'a videotape capturing the events in question,' the court must 'view[ ] the facts in the light depicted by the videotape.' " Green v. Throckmorton ,
With the above legal framework in mind, each Defendant's liability is discussed in turn.
a. Defendant Amanda Armstrong
Degolia's § 1983 claims against Armstrong fail as a matter of law. Liability will attach to "officers who were not actually involved in the challenged conduct ... only if those officers 'observed or had reason to know that excessive force would be or was being used and had both the opportunity and the means to prevent the harm from occurring.' " Ondo v. City of Cleveland ,
As the video evidence shows, Armstrong's only involvement in the challenged conduct in the booking area was to
Because Armstrong did not violate Degolia's constitutional rights, she is entitled to qualified immunity. Accordingly, the § 1983 claims against Armstrong (Counts I & II) will be dismissed with prejudice.
b. Defendant Michael Crouthers
1. Booking Area - Crouthers
Crouthers' involvement is similar to that of Armstrong. Branstutter testified that he, independently, made the decision to take down Degolia. (Doc. 61-4 at 131- 32). The video, moreover, clearly shows that Crouthers was attempting to place some paperwork on the booking counter when Branstutter grabbed Degolia and threw him to the floor. Crouthers stumbled to catch up with what had just occurred, and before he could gain his footing, Branstutter had delivered a series of blows to Degolia's head. The video plainly shows that Crouthers did not strike Degolia or use force that can be classified as excessive or "gratuitous."
In the split-second that these events occurred, Crouthers cannot be charged with knowledge that excessive force would be or was being used. Nor can it be said that Crouthers "had both the opportunity and the means to prevent the harm from occurring." Ondo ,
Crouthers' only actual involvement in the events in the booking area was in the scramble to secure Degolia. But "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham ,
Therefore, there is no constitutional violation. At the very least, Degolia has not identified a case that clearly establishes the alleged constitutional violation such
2. Events in Cell B2 - Crouthers
The video evidence establishes that Crouthers is the only Defendant with any involvement in the alleged excessive force that occurred when Degolia was initially brought to cell B2. Degolia avers that when he was in handcuffs and on his kneеs in the cell, Crouthers had a hold of "my right arm and was raising it. As he was pushing down on the back of my neck ... and I thought my arm was going to dislocate." (Doc. 61-3 at 105).
The video footage, however, contradicts Degolia's contention that his arms were being hyperextended and establishes that Crouthers did not use constitutionally excessive force. The video shows Crouthers merely holding Degolia's arms slightly elevated behind his back while exerting downward pressure on Degolia's neck. (Doc. 54, Degolia Safety Chair at 0:00:06-53). When there is "video evidence contradicting a plaintiff's claims," there is no issue of fact and summary judgment is appropriate. See Lee v. City of Norwalk ,
The Sixth Circuit has found that conduct similar to Crouthers' does not violate the constitution. See Lee ,
Because Degolia has failed to establish a constitutional violation, Crouthers is entitled to qualified immunity for the constitutional claims arising from the events in Cell B2.
3. Use of the Restraint Chair - Crouthers
The video recordings show that it was Branstutter and Crouthers who secured Degolia in the restraint chair.
Defendants argue that the use of the restraint chair, the manner in which Degolia was secured in it, and the time Degolia spent in the chair do not offend the Constitution. (Doc. 61-1 at 24-27). Degolia makes no argument in response. As a practical matter, "it is well understood ... that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that
Further, the Court independently concludes it was not objectively unreasonable for Crouthers to place Degolia in the chair and keep him in it for approximately two hours.
A different result does not obtain merely because, as Degolia argues, he was in handcuffs and on his knees in a cell where the deputies "could have" left him. (Doc. 62 at 11). "The Fourth Amendment ... does not require police officers to take the better approach. It requires only that they take a reasonable approach." Cook v. Bastin (In re Estate of Campbell) ,
But even assuming the opposite is true, Degolia has not pointed to any binding precedent suggesting, much less clearly establishing "beyond debate," that in the pretrial context (and under similar circumstances) either the use of a restraint chair or being kept in a restraint chair for just over two hours violates the Constitution.
Therefore, Crouthers is entitled to qualified immunity insofar as it concerns the restraint chair. Counts I and II against Crouthers will accordingly be dismissed with prejudice.
c. Defendant Branstutter
1. Booking Area - Branstutter
The video footage of the booking area plainly shows Degolia sitting in a
i. Degolia Did Not Actively Resist
The general rule is that when a detainee "poses no threat to others and is not trying to escape," a "spontaneous assault" or "unprovoked and unnecessary blow" is grounds for an excessive force claim. See Coley ,
Here, Degolia was arrested for intoxication, which is "not a severe offense that would support a greater use of force." See Lustig v. Mondeau ,
It bears emphasis that Defendants do not contend that Degolia was causing a disturbance in the booking area or threatening the booking clerk when he refused to answer standard medical questions and asked for an attorney.
Branstutter attempts to change the tide by arguing that other factors made his actions reasonable. But in doing so, Branstutter has taken liberties with the facts. (Doc. 61-1 at 15-18). At summary judgment, this is unavailing. Regardless of Branstutter's recollection of the events, this Court cannot rely "on such visible fiction"; it must "view[ ] the facts in the light depicted by the videotape[s]." E.g. , Scott ,
Branstutter points to three aspects of the situation to justify the force used: (1) Degolia's relative size; (2) his intoxication; and (3) his "active resistance" toward the deputies. (Doc. 61-1 at 15-17).
The first two considerations are without merit. With respect to size, Degolia weighs 210 pounds, (Doc. 61-3 at 54), Branstutter weighs 225 pounds. (Doc. 61-4, Branstutter Dep. at 20), and although the record does not indicate Crouthers' weight, it is apparent
As to Degolia's intoxicated state, that alone does not justify Branstutter's use of force. The Sixth Circuit has repeatedly observed that although "heavy intoxication may, on its own, render it reasonable to handcuff an individual, the reasonableness of the force used to effectuate the seizure ... will generally depend upon other circumstances, such as the individual's resistance and hostility. " Stanfield v. City of Lima ,
That leaves the final factor cited by Branstutter: that Degolia "actively resisted." "Active resistance" has been described by the Sixth Circuit as:
[P]hysically struggling with, threatening, or disobeying officers. And it includes refusing to move your hands for the police to handcuff you, at least if that inaction is coupled with other acts of defiance. But active resistance does not include being compliant or having stopped resisting; or having done nothing to resist arrest, or having already been detained. A simple dichotomy thus emerges: When a suspect actively resists arrest, the police can use a taser (or a knee strike) to subdue him; but when a suspect does not resist, or has stopped resisting, they cannot.
Rudlaff v. Gillispie ,
Degolia's conduct in the booking area does not constitute active resistance. The video shows that Degolia sat virtually motionless in a chair after filling out paperwork and none of the Defendants have testified that Degolia verbally threatened them at any time in the booking room. Thus, the Court is left with a very narrow time frame between when Degolia sat down in the chair and when the takedown occurred, when Branstutter contends Degolia "actively resisted." In particular, Branstutter argues Degolia "actively resisted" by: (1) failing to comply with request(s) to "stand up"; (2) pulling his arm away; and (3) using "dead-weight" or "downward pressure in the chair against Branstutter's effort to lift." (Doc. 61-1 at 5-6, 17, 19). The Court is not persuaded.
First, according to Defendants' recollection, Degolia was asked to stand roughly a
Whether Degoliа may have been asked to stand, at most twice, is not a genuine issue of material fact. The Sixth Circuit has long held that "mere noncompliance is not active resistance." Woodcock v. City of Bowling Green ,
Whether Degolia swore at the deputies also does not raise a genuine issue of material fact. Noncompliance in a booking area-even when coupled with an offensive insult-is not active resistance that justifies throwing a detainee to the floor. Lawler v. City of Taylor ,
Thus, the now-distilled question is whether Degolia "actively resisted" the deputies in the narrow span of three seconds when Crouthers and Branstutter flanked Degolia and attempted to lift or pull him out of the chair. (Doc. 54, Booking Admin Pt. 1 at 3:16:24-27). "Of course, takedowns are in many circumstances appropriate, see Hayden v. Green ,
First, Degolia's act of pulling his arm back, seen in the video when the deputies flanked him from behind, is not the type of "physical" struggling that rises to the level of "active resistance." Compare McCaig v. Raber ,
Further, to the extent Degolia's conduct was "somehow provocative, it was not so obviously aggressive to warrant brute physical force." See Malory v. Whiting ,
In Pelton v. Perdue , the suspect "reflexively pulled his arm away from [the officer] and turned toward his sliding glass door after [the officer] grabbed at him" to effectuate an investigatory stop.
Nor does the fact that Degolia was not handcuffed render Branstutter's actions objectively reasonable. See Laury v. Rodriguez ,
Branstutter's argument is thus reduced to the claim that when Branstutter grabbed Degolia's arm "he went dead weight" and "just didn't help, didn't attempt to get up under his own power." (Doc. 61-4 at 87). But Branstutter's testimony is self-defeating: Degolia was not "actively" resisting because he was not doing anything.
This view is supported by Griffith v. Coburn ,
Unlike in Griffith , here, the Court has the benefit of video capturing the events. The video clearly shows Degolia passively sitting in the chair with his arms folded. Branstutter resorted so quickly to violent force that there was arguably no time for any person to engage in any meaningful "struggle." The fact Degolia did not stand up at the first (and only) tug from Branstutter that can be seen in the video does not equate to active resistance. "The Fourth Amendment's protections do not evaporate the moment an individual resists an officer's command." Martin v. City of Broadview Heights ,
The final step in the reasonableness inquiry then, is to assess the proportionality between "the need for the use of force and the amount of force used," Kingsley ,
The surveillance video shows that Branstutter (1) used a takedown maneuver in the form of a headlock-type chokehold; and (2) once on the floor, immediately followed with multiple closed-fist strikes to Degolia's face while maintaining a chokehold. See Laury ,
ii. Brantutter's Initial Takedown and Chokehold
The use of force is "classified along a 'force continuum,' " with a "vascular restraint" (i.e. , a chokehold) lying somewhere "beyond pepper spray" and closer in similarity to batons or tasers. Griffith ,
Here, Branstutter used a chokehold to throw Degolia to the ground and maintained his grip for roughly thirty seconds. (Doc. 54, Booking Admin Pt. 1 at 3:16:27-54). Branstutter's chokehold in itself is unconstitutional. Coley v. Lucas Cty. ,
Where Degolia was not actively resisting, Branstutter's takedown maneuver was likewise unconstitutional. See, e.g. ,
The unconstitutional nature of Branstutter's actions shown in the video is borne out by the fact that nothing in the video shows that Branstutter attempted to "temper or to limit the amount of force." Kingsley ,
Therefore, Branstutter's takedown and chokehold were unreasonable.
iii. Actions on the Floor: Closed-Fist Facial Strikes
Branstutter did more than just take down Degolia. Almost immediately upon coming to the floor, Branstutter delivered 6-7 forceful closed-fist blows to Degolia's head in a matter of nine seconds. (Doc. 54, Booking Admin. at 3:16:29-39). This was excessive, gratuitous force in violation of the Constitution. See, e.g. , Lawler ,
To the extent Branstutter contends "the force [he] used was reasonable merely because [Degolia] offered some resistance before he was handcuffed, [the Sixth Circuit's] precedents foreclose this line of argument." Martin v. City of Broadview Heights ,
The fact that Degolia had two deputies on top of him renders Branstutter's serial facial strikes all the more unreasonable. Malory ,
Viewing the facts as depicted by the video evidence, Branstutter used objectively unreasonable force in violation of the Fourth Amendment.
iv. Clearly Established Law
The final question is whether Degolia's right to be free from excessive force involving a chokehold-takedown and facial strikes under the circumstances in the booking room was "clearly established" at the time of the incident. There is no doubt that it was.
As relevant here, the Supreme Court has observed that:
Use of excessive force is an area of the law "in which the result depends very much on the facts of each case," and thus police officers are entitled to qualified immunity unless existing precedent "squarely governs" the specific facts at issue. Precedent involving similar facts can help move a case beyond the otherwise "hazy border between excessive and acceptable force" and thereby provide an officer notice that a specific use of force is unlawful.
Kisela v. Hughes , --- U.S. ----,
"[T]he focus is on whether the officer had fair notice that her conduct was unlawful." Kisela ,
Here, a minimum of three prior cases with sufficiently similar facts involving a deputy-detainee altercation in a booking room provided Branstutter with ample notice that the force used in this incident was unlawful.
First, in Lawler v. City of Taylor ,
The Sixth Circuit upheld the denial of qualified immunity, reasoning that the "videotape of the incident, together with [plaintiff]'s account of the verbal sparring that preceded it, would permit a jury to conclude that [the deputy]'s use of force in
Second, in Malory v. Whiting ,
Again, the Sixth Circuit upheld the denial of qualified immunity, concluding that plaintiff's conduct in the booking area "was argumentative at worst."
Finally, in Laury v. Rodriguez ,
The Sixth Circuit reversed the district courts' decision to grant the officers qualified immunity because by "pushing [plaintiff] onto the bench, choking him, and 'slamming' him onto the floor face-first, [the officer] 'gratuitously applied additional force, which inflicted pain ... against an individual who posed no threat to safety, did not attempt to flee, offered at most passive resistance to the officers, and was already under the officer[']s[ ] physical control." Id. at 844 (third and fourth alterations in original) (quoting Lustig ,
It is "sufficiently clear" from these cases and the others cited above "that every reasonable official would have understood that" -grabbing Degolia in a chokehold,
Because there is no issue of fact to be determined in light of the uncontroverted video evidence of the altercation in the booking room, summary judgment, to the extent of liability, is appropriate on Count I against Branstutter.
3. Use of the Restraint Chair - Branstutter
"[T]he fact that the initial takedown was clearly unconstitutional does not mean that all the [deputy's] subsequent actions are ipso facto not protected by qualified immunity." Jennings ,
Accordingly, Branstutter is entitled to qualified immunity insofar as it concerns his involvement with Degolia being placed in the restraint chair.
III. § 1983 - MONELL CLAIMS
Degolia has also sued the individual Defendants in their official capacities, as well as Kenton County (the "County") and a number of its subdivisions based on the doctrine of respondeat superior. (Doc. 1, ¶¶ 58-60, 63).
An elementary principle of § 1983 litigation is that "[a] suit against a [government] official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." See, e.g. , Will v. Michigan Dep't of State Police ,
"Local governing bodies ... can be sued directly under § 1983." Monell v. Dep't of Soc. Servs. ,
Thus, the excessive force claims above that survive-those against Branstutter-are the only § 1983 claims that must be analyzed. Thе question then is whether Degolia was subjected to a takedown, chokehold, and facial strikes because of a policy or custom of Kenton County.
Municipal policies and customs include "the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick v. Thompson ,
Degolia argues his § 1983 claims against the County and its subdivisions are cognizable under what amounts to a failure-to-train theory. (Doc. 62 at 2, 20-21). For Degolia to prevail on his failure-to-train theory, he must show "(1) that a training program is inadequate to the tasks that the officers must perform; (2) that the inadequacy is the result of [Kenton County's] deliberate indifference; and (3) that the inadequacy is closely related to or actually caused [his] injury." Brown v. Chapman ,
As to the first prong, although the deputies testified that they only receive training on use-of-force from a field training officer ("FTO" training) upon being hired, (Doc. 61-4 at 25-26, 34; Doc. 61-7 at 8-9), the fact "[t]hat a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the [municipality], for the officer's shortcоmings may have resulted from factors other than a faulty training program." Canton ,
With respect to the second prong, " 'deliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bd. of the Cty. Comm'rs of Bryan Cty. v. Brown ,
" Monell's rule ... will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city [or county] is responsible." Canton ,
For all these reasons, Degolia has failed to establish that a deficiency in deputy training reflects Kenton County's deliberate indifference to the rights of pretrial detainees. Therefore, Degolia's § 1983 claims against the County and its subdivisions will be dismissed with prejudice.
IV. STATE-LAW CLAIMS
Defendants maintain that they are entitled to qualified official immunity under Kentucky law. This is correct in part, except that Branstutter is not entitled to qualified official immunity.
A. Qualified Official Immunity
Kentucky law holds that "qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment, (2) in good faith; and (3) within the scope of the employee's authority." Yanero v. Davis ,
A showing of "bad faith" may be founded "on a violation of a constitutional, statutory, or other clearly established right which a person in the official's position would have known was afforded to a person in the plaintiff's position i.e. , objective unreasonableness." Yanero ,
It follows then that in light of the above § 1983 qualified immunity analysis, Crouthers and Armstrong are entitled to qualified official immunity as to Degolia's state-law claims. Thus, Counts III-V against Armstrong and Crouthers will be dismissed with prejudice.
B. Negligence (Count III)
The general elements of negligence are: (1) duty; (2) breach; (3) injury; and (4) legal causation between the defendant's breach and the plaintiff's injury. Osborne v. Keeney ,
Accordingly, Count III against Branstutter stands.
C. Assault & Battery (Count IV)
Under Kentucky law, "a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be necessary to prevent the escape of a person from jail, prison, or other institution for the detention of persons charged with or convicted of a crime." KRS § 503.090(3). In relevant part, KRS § 503.110 further provides that:
The use of physical force by a defendant upon another person is justifiable when the defendant is a warden or other authorized official of a correctional institution, and:
(a) The defendant believes thаt the force used is necessary for the purpose of enforcing the lawful rules of the institution; [and]
(b) The degree of force used is not forbidden by any statute governing the administration of the institution ...
KRS § 503.110(2).
Because this section turns on Branstutter's subjective belief, it is an issue for the jury. Woodcock ,
D. Intentional Infliction of Emotional Distress (Count V)
Count V must be dismissed as to all Defendants. The Kentucky Supreme Court was emphatically clear that:
[W]here an actor's conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie.
Childers v. Geile ,
Because the facts here are clearly based on conduct amounting to assault and battery, Count V must be dismissed with prejudice as to all Defendants.
In Count VI, Degolia alleges the County and the named subdivisions are vicariously liable for the acts of the individual Defendants because the County employed these deputies. (Doc. 1, ¶ 59).
Kentucky law provides that "[s]overeign immunity bars state-law actions against [Kentucky] county governments." Doe v. Magoffin Cty. Fiscal Court ,
Degolia has not pointed to any authority establishing that sovereign immunity for Kenton County has been waived. Moreover, "Kentucky courts have treated fiscal courts as county governments and thus have permitted fiscal courts to share sovereign immunity with county governments."
Therefore, state-law sovereign immunity bars Degolia's state-law claims (Counts III-V) against the County, Kenton County Fiscal Court, the Kenton County Detention Center, and the individual Defendants in their official capacities.
V. CONCLUSION
Consistent with the accompanying Memorandum Opinion, it is hereby ORDERED that:
(1) Plaintiff's motion for leave to file an affidavit as a surreply to the motion to strike (Doc. 74), is GRANTED ;
(2) Plaintiff's motion to extend the deadline to file a dispositive motion (Doc. 67), is GRANTED ;
(3) Defendants' motion to strike plaintiff's cross-motion for summary judgment (Doc. 64), is DENIED ;
(4) Plaintiff's amended complaint (Doc. 78), is STRICKEN from the docket;
(5) Defendants' joint motion for summary judgment on all claims (Doc. 61), is DENIED IN PART and GRANTED IN PART ;
(6) Defendant's motion for summary judgment is DENIED as to Counts I, III, and VI against Defendant Aaron Branstutter;
(7) All claims against Defendants Michael Crouthers and Amanda Armstrong are DISMISSED WITH PREJUDICE ;
(8) Counts II, V, and VI against Defendant Aaron Branstutter are DISMISSED WITH PREJUDICE;
(9) All claims against Kenton County, Kenton County Fiscal Court, the Kenton County Detention Center, and the individual Defendants in their official capacities are DISMISSED WITH PREJUDICE;
(10) Plaintiff's cross-motion for summary judgment on the issues of qualified immunity and the use of excessive force (Doc. 63), is GRANTED IN PART and DENIED IN PART ;
(11) On the issue of liability under Count I against Defendant Aaron Branstutter, insofar as it concerns his conduct in the booking room, summary judgment in favor of plaintiff is GRANTED;
(12) A final pretrial conference be, and is hereby, SET FOR FRIDAY, JULY 12, AT 1:00 P.M. A copy of the Court's standard final pretrial order shall enter concurrently herewith;
(13) A jury trial on all remaining claims be, and is hereby, SET FOR MONDAY, AUGUST 12, 2019, BEGINNING AT 10:00 A.M. Each side shall have ten (10) hours to present their case.
A separate judgment shall enter concurrently herewith.
Notes
Degolia admits that he was "under the influence of alcohol" but maintains that he was not "extremely intoxicated." (Doc. 61-3 at 66, 70).
Degolia can be seen exiting the patrol car on the body camera footage. (Doc. 54, Ulrich Bodycam at 21:38). Although there is also no audio on this segment of video, nothing indicates Degolia was violent or disruptive upon his arrival at the sally port. Id. at 21:38-22:28.
There is no audio on the video surveillance, but Branstutter stated at deposition that Degolia "might have been a little mouthy" in the search vestibule. (Doc. 61-4 at 58).
When Defendant Crouthers' deposition was taken, he testified that he had not seen any of the video footage of the events in question. (Doc. 61-7 at 21-22).
Defendant Crouthers was asked at deposition to identify "each time somebody told Degolia to stand up and cooperate" and the following exchange occurred:
A: I'll attempt, but without the audio, I don't know how I'm supposed to do that.
Q: Well, can you remember what you were doing that night when you werе interacting with him?
A: No. It was over a year and a half ago.
(Doc. 61-7 at 63-64).
What was said exactly is not addressed in either Branstutter or Degolia's deposition.
According to Crouthers' testimony it is about at this time, as he was approaching Degolia, that he stated something to the effect of "please stand up, let's go, get up...." (Doc. 61-7 at 21).
Branstutter claims that from where he was in the search vestibule, he "heard a commotion or something" or that "somebody was getting loud out in the booking area," (Doc. 61-4 at 80-81), and also overheard Crouthers ask Degolia to "get out of the chair" as Crouthers was walking toward Degolia. (Doc. 61-4 at 88-89).
Branstutter avers that when he came out of the search vestibule and approached Degolia's left side he asked Degolia to "get up" or "get out of the chair." (Doc. 61-4 at 88-90).
Crouthers testified that he and Branstutter tried to pick Degolia up but he "jerked away from us." (Doc. 61-7 at 68). Both deputies also claim Degolia responded by telling them either "don't fucking touch me" or "fuck off." (Doc. 61-7 at 15, 28; Doc. 61-4 at 88). Beatty testified only that she remembers a deputy, which she believes was Crouthers, had told Degolia to stand up "more than once." (Doc. 61-5 at 79, 81- 83, 95). Degolia testified, however, that "nobody told me to stand or do anything." (Doc. 61-3 at 85-86).
Degolia also alleges in Counts I and II that his claims for excessive force and cruel and unusual punishment are cognizable under the parallel provisions of the Kentucky Constitution. Cf. Ky. Const. §§ 10, 17. Neither of the parties have referred to these sections in their respective motions. Section 10 of the Kentucky Constitution, however, is interpreted according to federal case law applying the Fourth Amendment to the United States Constitution. See Rainey v. Commonwealth ,
Although Kingsley involved a pretrial detainee's excessive force claim under the Fourteenth Amendment the standard is the same. Hopper ,
Although Armstrong was the individual with a handheld device recording the events in the Cell B2 and the use of the restraint chair, as detailed below, the challenged conduct in these segments was not objectively unreasonable.
It remains uncontested that Sergeant Landrum made the decision to place Degolia in the Safety Chair. (Doc. 61-7 at 12-13); (Doc. 61-4 at 111-12); (Doc. 1-3 at 3). But Landrum is not a party in this case.
Contrary to Degolia's contention, the force used to secure Degolia in the chair, as shown in the video, is unquestionably "a de minimis level of [force] with which the Constitution is not concerned." Hanson ,
That Defendants allegedly violated KC Detention center policies by using the restraint chair does not change the outcome. See (Doc. 62 at 14-15); (Doc. 1-4, KC Detention Center Policy No. 3.2.34 § III, at 10 (stating that the Safety Chair is for a prisoner "whose behavior demonstrates their intent to cause injury/harm to [themself] or others, or whose actions may result in the destruction of property. The [Safety Chair] should be utilized when less restrictive alternatives have failed, appear likely to fail, or it is apparent that they will be ineffective in controlling a violent, dangerous, or disordered prisoner's behavior or threat."). "It must have been clearly established that the conduct at issue violates the Constitution, not internal policies." Latits ,
Defendants concede that Degolia's noncompliance with the booking process is immaterial because the force at issue was not used to gain Degolia's compliance. (Doc. 61-1 at 4). Indeed, as Beatty testified, whether or not a detainee is cooperative they are taken to a cell. (Doc. 61-5 at 97). Moreover, if Degolia ever was "getting loud," even Branstutter testified that this would be no reason to use a takedown maneuver. (Doc. 61-4 at 82).
See (Doc. 61-7 at 69-70); cf. (Doc. 54, Booking Admin Pt. 1 at 3:15:07-35).
(Doc. 61-7 at 21); (Doc. 61-4 at 88-90); cf. (Doc. 54, Booking Admin Pt. 1 at 3:16:22-25).
(Doc. 61-7 at 15, 28; Doc. 61-4 at 88).
In the Incident Report completed just over an hour after the takedown, Branstutter and Crouthers noted in their respective accounts that they asked Degolia to stand up. (Doc. 1-3 at 1-2).
See, e.g. , (Doc. 61-1 at 5 ("[W]hether [Degolia] did or didn't cuss the deputies while in the booking is not a fact dispute preclusive of summary judgment"); (Doc. 65, Def.'s Reply at 5-6) ("Degolia was not taken to the floor for anything that he said; rather, he was taken to the floor because he would not stand up and deputies' force to lift him from the chair proved to be insufficient.").
Crouthers and Branstutter both testified that they have been instructed to achieve inmate-compliance through the use of force in three stages: "verbal control" then "soft empty-hand control" and finally "mace or ... of course, physical force." (Doc. 61-7 at 7; Doc. 61-4 at 82-83).
There is one exception. In "a narrow range of circumstances ... the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations." Connick ,
The doctrine of "respondeat superior is not a cause of action. It is a basis for holding the [Defendant] responsible for the acts of its agents." O'Bryan v. Holy See ,