Swiecicki v. Delgado

• Citation: 463 F.3d 489
• Decision Date: 15 September 2006
• Docket Number: No. 05-4036.,05-4036.
• Parties: Jeffrey SWIECICKI, Plaintiff-Appellant, v. Jose DELGADO, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

463 F.3d 489

Jeffrey SWIECICKI, Plaintiff-Appellant, v. Jose DELGADO, Defendant-Appellee.

No. 05-4036.

United States Court of Appeals, Sixth Circuit.

Argued: May 31, 2006.

Decided and Filed: September 15, 2006.

ARGUED: Stephen W. Gard, Cleveland, Ohio, for Appellants. Thomas R. Wolf, Reminger & Reminger, Cleveland, Ohio, for Appellee. ON BRIEF: Stephen W. Gard, Cleveland, Ohio, for Appellants. Thomas R. Wolf, Reminger & Reminger, Cleveland, Ohio, for Appellee.

Before: GILMAN, SUTTON, and COOK, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which COOK, J., joined. SUTTON, J. (pp. 503-07), delivered a separate opinion concurring in part, concurring in the judgment in part and dissenting in part.

OPINION

RONALD LEE GILMAN, Circuit Judge.

While attending a Cleveland Indians baseball game, Jeffrey Swiecicki, along with several of his friends, loudly cheered for some players and heckled others. Officer Jose Delgado, an off-duty police officer for the City of Cleveland, was in full uniform and working for the ballpark as a security guard. He allegedly heard Swiecicki using profane language. Delgado asked Swiecicki to halt his behavior or leave the stadium. When Swiecicki did not respond, Delgado placed Swiecicki in the "escort position" and began leading him out of the bleachers. In the course of leaving the stadium, Delgado arrested Swiecicki and wrestled him to the ground. Swiecicki was later charged with and convicted of disorderly conduct and resisting arrest, but his convictions were overturned on appeal. See City of Cleveland v. Swiecicki, 149 Ohio App.3d 77, 82, 775 N.E.2d 899 (Ohio Ct.App.2002).

He subsequently filed an action in federal district court pursuant to 42 U.S.C. § 1983, alleging that Delgado had violated his constitutional rights by arresting him based on the content of his speech, had effectuated the arrest without probable cause, and had used excessive force during the arrest. Swiecicki also raised various state-law claims. The district court granted summary judgment to Delgado, holding that the statute of limitations had run on Swiecicki's excessive-force claim, that Delgado was entitled to qualified immunity on the remaining federal claims, that he was entitled to judgment as a matter of law on the state-law claim of malicious prosecution, and that Swiecicki's other state-law claims should be dismissed without prejudice. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

On September 25, 2001, Swiecicki and several of his friends attended a Cleveland Indians baseball game at Jacobs Field. During the game, Swiecicki heckled members of both teams, particularly those playing the left field position, and consumed two beers.

At all relevant times, Delgado, a City of Cleveland police officer, was working as a security guard and was stationed at a tunnel near the bleachers where Swiecicki and his friends were seated. Delgado was officially off-duty, but he was wearing his police uniform with his badge and was carrying the weapons issued by the police department. Wilfred Labrie, a host greeter for Jacobs Field, was assigned to a section near Delgado. Both of these men were hired to provide assistance and to monitor the fans' behavior.

In conjunction with Gateway Economic Development Corporation (Gateway), the owner of Jacobs Field, the Indians promulgated various rules and regulations to govern fan behavior. The rule relevant to the present case provides as follows:

Fan Behavior: Persons using obscene or abusive language, or engaging in any other antisocial conduct offensive to those around them, will be asked by Cleveland Indians personnel to cease this conduct. If the offensive conduct persists, those involved will be subject to ejection from the ballpark.

Although the fan-behavior rule prohibits offensive or abusive language, no similar rule prohibits loud yelling, heckling, or booing. Swiecicki admits that he led a group of fans in various heckles and cheers. He also contends that "almost the entire bleachers were yelling."

Around the seventh inning, both Delgado and Labrie allegedly heard loud, profane language coming from the bleachers. Delgado claims that he heard Swiecicki yell "Branyon, you suck" and "Branyon, you have a fat ass." Swiecicki admits to loud heckling, but denies that he used profane language. Although Swiecicki also denies that he was intoxicated, Delgado contends that he saw Swiecicki with a beer in his hand at the time of the offensive comments. Labrie, however, testified that neither the bleachers nor Swiecicki were directly visible from where Labrie and Delgado were stationed.

Based upon Delgado's perception of Swiecicki's comments and realizing that Swiecicki might be intoxicated, Delgado approached Swiecicki and told him to "cut it out." Swiecicki did not respond. Although no fan specifically requested that Delgado take action to stop Swiecicki's behavior, Delgado alleges that a man with a young daughter later thanked Delgado for asking Swiecicki to lower his voice. After again motioning to Swiecicki to halt his behavior with no success, Delgado told Swiecicki: "We can either do this the easy way or the hard way." Swiecicki then approached Delgado. Delgado moved toward Swiecicki, grabbed his arm and shirt to place him into the "escort position," and led him towards the tunnel to exit the stadium.

While Delgado was escorting Swiecicki through the tunnel, Swiecicki asked Delgado "on more than 10 occasions" what he had done to prompt Delgado's actions. Delgado provided no response. Swiecicki's brother Scott, along with three other men, began to follow Delgado, also asking Delgado what Swiecicki had done wrong. At this point, Delgado alleges that Swiecicki jerked his arm away to break from Delgado's grasp. Swiecicki denies any physical resistance. Delgado then used an "arm bar" and wrestled Swiecicki to the ground, with Swiecicki hitting his head on a door before falling to his knees. On the ground, Delgado pushed Swiecicki's face into the concrete and continued to apply pressure to his right arm despite Swiecicki's pained expression. Delgado then told Swiecicki that he was under arrest.

Swiecicki was later charged with aggravated disorderly conduct pursuant to Cleveland Codified Ordinance § 605.03 and with resisting arrest pursuant to Cleveland Codified Ordinance § 615.08. He was found guilty by the Cleveland Municipal Court of the lesser-included offense of disorderly conduct and of resisting arrest. The Ohio Court of Appeals, however, reversed his convictions based on insufficiency of the evidence. See Swiecicki, 149 Ohio App.3d at 82, 775 N.E.2d 899.

Swiecicki then filed the present suit in federal district court pursuant to 42 U.S.C. § 1983, alleging that Delgado had violated his constitutional rights by arresting him (1) based on the content of his speech in violation of the First Amendment, (2) without probable cause in violation of the Fourth Amendment, and (3) through the use of excessive force in violation of the Fourth Amendment. Swiecicki also accused Delgado of assault, battery, false imprisonment, and malicious prosecution, all in violation of Ohio law. The district court granted summary judgment in favor of Delgado, holding that qualified immunity acts as a complete bar to all of Swiecicki's federal claims. It also granted summary judgment to Delgado on the malicious-prosecution claim and dismissed the remaining state-law claims without prejudice for lack of jurisdiction.

II. ANALYSIS

A. Standard of review

We review de novo the district court's grant of summary judgment. Int'l Union v. Cummins, 434 F.3d 478, 483 (2006). Summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. The statute of limitations as applied to Swiecicki's Fourth Amendment excessive-force claim

Swiecicki first argues that the district court erred in holding that his Fourth Amendment excessive-force claim was barred by the statute of limitations. The district court's determination is a question of law that we review de novo. Wolfe v. Perry, 412 F.3d 707, 713 (6th Cir.2005) (reversing a district court's determination that the complaint was filed after the statute of limitations had run). Because Congress did not specify a statute of limitations for claims made pursuant to § 1983, we must borrow the statute of limitations governing personal injury claims in Ohio. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.2003) (holding that "federal courts must borrow the statute of limitations governing personal injury actions in the state in which the section 1983 action was brought"). The appropriate statute of limitations in this case is two years. See id. When the statute of limitations begins to run depends on the nature of the claim under § 1983. Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a § 1983 claim for malicious prosecution does not accrue "until the criminal proceedings have terminated in the plaintiff's favor").

Typically, the statute of limitations for filing an action based on excessive force begins to run at the time the injury is discovered, which in most cases is at the time of the arrest. If, however, a cause of action...