418 F.3d 676 (6th Cir. 2005), 03-3259, Cummings v. City of Akron

Docket Nº:03-3259.
Citation:418 F.3d 676
Party Name:Clifford CUMMINGS, Jr., Plaintiff-Appellant, v. CITY OF AKRON; Rodney Sherman; and Howard Vaughn, Jr., Defendants-Appellees.
Case Date:July 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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418 F.3d 676 (6th Cir. 2005)

Clifford CUMMINGS, Jr., Plaintiff-Appellant,


CITY OF AKRON; Rodney Sherman; and Howard Vaughn, Jr., Defendants-Appellees.

No. 03-3259.

United States Court of Appeals, Sixth Circuit.

July 22, 2005

Submitted: Sept. 16, 2004.

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Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 02-00410—James S. Gallas, Magistrate Judge.


Gary H. Levine, Cleveland, Ohio, for Appellant.

John C. Reece, Patricia A. Rubright, City of Akron, Department of Law, Akron, Ohio, for Appellees.

Before: SUHRHEINRICH and CLAY, Circuit Judges; NIXON, District Judge.[*]


CLAY, Circuit Judge.

Plaintiff Clifford Cummings, Jr. appeals from the district court's grant of summary judgment to Defendants City of Akron, Rodney Sherman, and Howard Vaughn, Jr., in this civil rights action brought pursuant to 42 U.S.C. § 1983, alleging violations of Cummings' Fourth Amendment rights to be free from unreasonable seizure and excessive force. For the reasons that follow, we AFFIRM the grant of summary judgment to the City of Akron, as well as the dismissal of Cummings' excessive force claim against all Defendants. However, we REVERSE the grant of summary judgment to Sherman and Vaughn on Cummings' claims of unreasonable seizure and illegal entry under the Fourth Amendment, and REMAND for further proceedings consistent with this opinion.


A. Underlying Facts and State Court Proceedings

The following material facts are not in dispute. On March 20, 2001, Defendants Sherman and Vaughn, both Akron police officers, were called to investigate a domestic disturbance call at 1115 Peerless Avenue. The alleged victim informed the officers that the alleged perpetrator, her boyfriend, Carl Bromback, was at 1125 Peerless Avenue, a neighboring house. Sherman and Vaughn went to 1125, which was the home of Plaintiff Cummings, to investigate. Sherman opened the outside screen door, and knocked on the inside entry door. Cummings came to a window from inside the home, and asked the officers what they wanted; Sherman requested that Cummings come to the front door. Cummings came to the front door and partially opened it, and spoke briefly with the officers. During their conversation, Sherman placed one of his feet inside Cummings' doorway, while Vaughn stood directly behind him. Sherman asked Cummings whether Bromback was inside the residence, to which Cummings responded that he was not. Cummings also denied Sherman's request to come inside the house.

While the officers were speaking with Cummings, Sherman detected the odor of marijuana emanating from inside Cummings' house. After inquiring about Bromback, Sherman asked Cummings "what about the weed?," and Cummings immediately attempted to close his front door. Sherman's foot, however, was still inside the doorway, and Cummings was unable to shut the door. At that point, Sherman and Vaughn both pushed the door open, and entered Cummings' home.

After Sherman and Vaughn gained entry into Cummings' house, a struggle ensued. The officers attempted to arrest

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Cummings, but he resisted, running out onto his front porch. During the struggle, Sherman and Vaughn struck Cummings with their fists and batons, and sprayed him with pepper spray. A third officer arrived on the scene, and used a Taser gun on Cummings. Cummings was finally subdued, handcuffed, and taken into police custody. After securing Cummings, the officers re-entered his home and seized marijuana and firearms.

Cummings was charged in the Summit County Court of Common Pleas with two counts of assaulting a police officer, both felonies, as well as resisting arrest, illegal cultivation of marijuana, possession of marijuana, and obstructing official business. Cummings pleaded not guilty to all charges, and filed a motion to suppress evidence. The trial court granted Cummings' motion to suppress, and the Ohio Court of Appeals affirmed. See State v. Cummings, No. 20609, 2002 WL 57979 (Ohio Ct. App. Jan. 16, 2002). Before the Ohio Court of Appeals, the State argued that Sherman and Vaughn were justified in entering Cummings' home either because he consented, or because there were exigent circumstances due to the officers' hot pursuit of a fleeing felon. Id. at *3-6. The State's hot pursuit theory rested on the argument that at the point when Cummings shut the door on Sherman's foot, he committed a felony assault, and the officers were justified in entering Cummings' house to arrest him. Id. at *5. The state did not contend at any point in the proceedings "that any exigent circumstances except 'hot pursuit' justified the officers' warrantless entry of Cummings' home." Id. at *4, n.2. The Ohio Court of Appeals rejected both the State's consent argument and its exigent circumstances due to hot pursuit theory, concluding that the officers' entry into Cummings' home was unlawful, and therefore any evidence obtained as a result of that entry was properly suppressed. Id. at *6.

On remand back to the trial court after the Ohio Court of Appeals' rejection of the State's suppression arguments, Cummings pleaded no contest to a reduced charge of misdemeanor assault on Officer Vaughn, and all other charges against him were dropped.1 He was sentenced to thirty days in jail on the assault charge, with credit for time served.

B. The Instant Lawsuit and Claims Presented on Appeal

Before the trial court accepted his plea and entered judgment on remand, Cummings filed the instant lawsuit in federal district court. The parties consented to have the suit heard by a magistrate judge, and following discovery, the magistrate granted Defendants' motion for summary judgment. Specifically, the magistrate judge concluded that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred all of Cummings' federal constitutional claims, and further, that Defendants were entitled to qualified immunity on those claims.2

On appeal, Cummings argues that the magistrate judge erred in rejecting his federal claims. The pleadings below, the

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magistrate judge's decision, and the parties' appellate briefs are less than clear in their treatment of the issues presented for review. Cummings' complaint contains a single federal constitutional claim, labeled "Count III - Deprivation of Civil Rights." The substance of this claim, as it appears in the complaint, is that "By seizing, beating, restraining and/or committing the actions hereinbefore described, Defendants deprived Plaintiff of his liberty interests under the Due Process clause of the Fourteenth Amendment to the United States Constitution and in violation of 42 U.S.C. § 1983." However, statements made by both Cummings' counsel and Defendants' counsel during Cummings' deposition demonstrate that both sides understood Cummings' suit to encompass Fourth Amendment claims for "unlawful entry" and "excessive use of force." (Cummings Dep. at 116, J.A. at 109.) When Defendants moved for summary judgment, it is clear from the legal memoranda submitted to the district court that they understood that Cummings was suing for the officers' allegedly illegal seizure of his person, allegedly unlawful entry into his home, and alleged use of excessive force, all violations of the Fourth Amendment. However, the magistrate judge only addressed the seizure of Cummings' person and the officers' use of excessive force, concluding that both claims are barred by Heck.3 The magistrate judge went on to state that:

The Court realizes that the defendants seek summary judgment on whether or not there was an unlawful warrantless entry into Cummings' home, but this allegation was not raised in the counts recited in the complaint, and this Court sees no need to expand upon issues which were not raised.

On appeal, Defendants cite to the magistrate judge's statement and argue that this Court should not entertain on appeal Cummings' claim for unlawful entry. We disagree. As an initial matter, the magistrate judge's decision not to address the claim is irrelevant to the question of whether this Court may address it on appeal. We apply a "course of the proceedings" test to determine whether defendants in a § 1983 action have received notice of the plaintiff s claims where the complaint is ambiguous. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc) (holding that failure to explicitly state in complaint whether a defendant is being sued in his or her individual capacity "is not fatal if the course of the proceedings otherwise indicate that the defendant received sufficient notice"). Here, regardless of the fact that Cummings failed to raise unlawful entry in his complaint, Defendants were clearly on notice of Cummings' unlawful entry claim; in fact, Defendants moved for summary judgment on the unlawful entry claim, which was fully briefed below by both parties. See, id. at 774 ("Subsequent filings in a case may rectify deficiencies in the initial pleadings."); see also Vencor, Inc. v. Standard Life and Accident Ins. Co., 317 F.3d 629, 641, n. 11 (6th Cir. 2003) (rejecting

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defendant's claim on appeal that plaintiff waived argument by not putting it in complaint, where plaintiff made the argument in its memorandum in opposition to defendant's motion for summary judgment). Notwithstanding the magistrate judge's statements, because Defendants failed to make any objection whatsoever to Cummings' failure to raise the unlawful entry claim in his complaint, we deem any objection waived for the purposes of this appeal. See Smoot v. United Transp. Union, 246 F.3d 633, 648 (6th Cir. 2001) ("Because [defendant] failed to object ....

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