687 Fed.Appx. 434 (6th Cir. 2017), 16-3826, Evans v. Plummer

Docket Nº:16-3826
Citation:687 Fed.Appx. 434
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:EMILY J. EVANS, Plaintiff-Appellee, v. PHIL PLUMMER, et al., Defendants, ERIC WAYNE BANKS; THOMAS FEEHAN, Defendants-Appellants,
Attorney:For EMILY J. EVANS, Plaintiff - Appellee: L. Michael Bly, Joshua M. Kin, Pickrel, Schaeffer & Ebeling, Dayton, OH. For ERIC WAYNE BANKS, THOMAS FEEHAN, Defendants - Appellants: Lynnette Dinkler, Jamey Todd Pregon, Dinkler Pregon, Dayton, OH.
Judge Panel:BEFORE: MERRITT, KETHLEDGE, WHITE, Circuit Judges.
Case Date:April 19, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 434

687 Fed.Appx. 434 (6th Cir. 2017)

EMILY J. EVANS, Plaintiff-Appellee,


PHIL PLUMMER, et al., Defendants,


No. 16-3826

United States Court of Appeals, Sixth Circuit

April 19, 2017


Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.


Evans v. Plummer, (S.D. Ohio, July 14, 2016)

For EMILY J. EVANS, Plaintiff - Appellee: L. Michael Bly, Joshua M. Kin, Pickrel, Schaeffer & Ebeling, Dayton, OH.

For ERIC WAYNE BANKS, THOMAS FEEHAN, Defendants - Appellants: Lynnette Dinkler, Jamey Todd Pregon, Dinkler Pregon, Dayton, OH.



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HELENE N. WHITE, Circuit Judge.

Montgomery County Sheriff's Office (" MCSO" ) sergeants Wayne Banks and Thomas Feehan appeal the denial of qualified immunity and state law immunity in this suit arising out of injuries sustained by Plaintiff Emily Evans while being processed into the Montgomery County Jail.1

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As to Banks's qualified immunity appeal, we DISMISS IN PART and AFFIRM IN PART; we REVERSE the denial of qualified immunity to Feehan, AFFIRM the district court's denial of state-law immunity to both appellants, and REMAND for further proceedings consistent with this opinion.


A. Evans's Arrest and Behavior Prior to Arrival at the Jail

At approximately 2:00 am on March 30, 2014, Ohio State Highway Patrol Trooper Carl Paulin arrested Evans for driving under the influence and possession of marijuana.[2] According to Paulin, Evans was " highly intoxicated" and " verbally combative." (R. 55, PID 1265.) After being told she was under arrest, Evans " kind of became squirmy" and " was jerking around." ( Id. at 1264.) But Paulin " did not have any issues controlling her" and " [n]ever had to use force" on her. ( Id. at 1264, 1268.)

Paulin further testified that after Evans was secured, he transported her to the Centreville police department to have her blood-alcohol content tested. On the way, Evans offered to perform oral sex on Paulin, urinated on herself, kicked and punched the seat, banged her head against the partition several times, and spat. According to Paulin, Evans " was back there just flipping out as I would generally call it." ( Id. at 1274.) At the police station, Evans continued " act[ing] out." ( Id. ) She " took her socks off and was swinging them around the room and holding them up in [Paulin's] face trying to get [him] to smell her urine." ( Id. at 1264.) Her blood alcohol content was .210. Paulin decided " it was probably best for [Evans] to sit downtown and sober up for her safety . . . ." ( Id. at 1267.) He therefore transported her to the Montgomery County Jail.

B. Events at the Jail

Pursuant to standard procedure, when Paulin and Evans arrived at the jail, Paulin was asked whether Evans was " cooperative or uncooperative." (R. 55, PID 1267.) Paulin answered that Evans was uncooperative. Banks later reported that " Paulin advised us that Evans was highly intoxicated and had assaulted officers." (R. 55-3, PID 1298.) Paulin testified that he had a brief conversation with jail personnel, but denied that he ever told them that Evans had assaulted an officer. Paulin did tell jail personnel that Evans " spat," " urinated," and " slung her urine around." (R. 55, PID 1270.) At his deposition, Paulin acknowledged that jail personnel might have " assumed that that was assault," because, " technically . . . slinging the urine around the room" at the police department " could be an assault on an officer." ( Id. at 1270, 1273.)

Every moment of Evans's time at the jail was recorded on video, often from multiple angles. The video shows Evans exiting Paulin's cruiser voluntarily, with her hands cuffed behind her. Banks and Yetter escort her into the receiving area of the jail, each holding one of her arms. As they enter the receiving area, Evans begins to complain, and Yetter responds: " Stop pulling away or it's gonna get a lot worse." (Handheld Camera Video Recording, R. 76 at 00:20 [hereinafter HandCam].) Yetter and Banks hold Evans against the wall of the receiving room, with her head against a padded mat and her hands still cuffed

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behind her. As Yetter begins to search Evans, Banks extends her cuffed hands and arms up and back, away from her body. Feehan, standing a few feet away, says: " Do what they tell you, or I'll tase you, you understand that?" (Receiving Room Camera 3, R. 76 at 4:53:22 [hereinafter Cam3].) Feehan continues: " Have you ever been tased before? It hurts." ( Id. at 4:53:25.) Evans says: " Yes. For fun." ( Id. at 4:53:28.) Feehan responds: " Well, this one won't be for fun." ( Id. at 4:53:30.)

Meanwhile, Yetter continues to search Evans, and Banks says: " Stop pinching," although what prompts him to do so is unclear. ( Id. at 4:53:32.) Feehan removes the belt of Evans's coat. Ort is attempting to remove a ring from Evans's hand, and Evans says: " Stop . . . my finger . . . ouch!" ( Id. at 4:53:42.) Feehan tells Evans: " Stop resisting and do what they tell you to do." ( Id. at 4:53:45.) Evans answers: " I'm not resisting . . . You don't need to hurt me." ( Id. at 4:53:47.) Another officer (it is not clear who) says: " Well then just hold still and relax." ( Id. at 4:54:04.) Evans answers: " I am." ( Id. at 4:54:06.) Feehan then instructs Evans to face the mat on the wall, and she does so.

As the search proceeds, Yetter is having trouble unbuttoning Evans's coat, and Evans asks her: " Do you need assistance?" (HandCam at 1:25.) Banks appears to pull Evans back a bit, and Feehan tells Evans: " Stop."

( Id. ) Evans turns to Feehan and responds: " I'm helping her . . . don't be assholes!" ( Id. at 1:30.) As Yetter tries to get the coat open, Evans jerks her arms, though whether she does so on her own or in response to additional pressure applied by Banks is unclear. Evans then yells: " It fucking hurts!" ( Id. at 1:40.) She begins to struggle a bit, and Banks tells her: " I'm gonna hold on to you until this is over. You're not gonna let go. I'm much stronger than you." ( Id. ) Evans sobs, and yells: " It hurts. I'm not resisting anything!" ( Id. at 1:47.) Banks appears to be exerting pressure to hold Evans in place, and he tells her: " Stop." ( Id. at 1:50.) Evans cries out multiple times. Feehan says: " Do what they say," and an officer (it is not clear who) adds: " It'll go much easier for you." (Cam3 at 4:54:44.) Feehan then lifts his taser and activates the laser sight. Feehan points the taser at Evans's face and the mat on the wall, and the dot from the laser sight is clearly visible on Evans's face. Feehan and Banks tell Evans to turn and face the mat. Evans does so, Feehan lowers the taser, and Evans yells: " Ouch! Honestly, fucking ouch! This hurts! I'm not resisting anything . . . . You're hurting me." ( Id. at 4:54:50) Evans continues to complain, and eventually turns her head, prompting Feehan to point the taser at her again and say: " Face the mat, please." ( Id. at 4:55:10.) Evans does so.

Evans quickly resumes moving her head around, however, and Yetter and Banks instruct her again to put her head against the wall mat; Evans complains, but eventually complies. Shortly thereafter, however, Banks tells her: " Stop moving around. You're making it worse." ( Id. at 4:55:44.) Banks then tells Evans several times: " Let your arms relax." ( Id. at 4:55:55.) Eventually, Yetter completes her task, and the officers prepare to remove Evans's boots and socks.

To that end, Banks instructs Evans to kneel on a bench set against the wall of the receiving room, and guides her to it, still holding her by her handcuffed arms. Evans does as instructed, kneeling with both knees on the bench and her face against the wall. Yetter removes Evans's boots as Ort holds Evans from the left and Banks holds her from the right. As Yetter does so, Banks tells Evans: " Do not kick your feet," although it is not clear whether Evans has done so. ( Id. at 4:56:12)

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Yetter then begins to tug on Evans's socks. Evans calls out: " Oh my god! Are you fucking serious!" and appears to slip from the bench and onto the floor. ( Id. at 4:56:16.) What happens in the next few seconds goes to the heart of Evans's claim against Banks. First, Evans returns to the bench. It is not clear whether this is the result of her own actions, she is lifted by Banks, or Ort, or some combination of all three. Second, as Yetter tries...

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