Hopper v. Phil Plummer

• Decision Date: 12 April 2018
• Docket Number: No. 17-3175,17-3175
• Parties: David M. HOPPER, Special Administrator of the Estate of Robert Andrew Richardson, Sr., Plaintiff-Appellee, v. PHIL PLUMMER, Montgomery County Sheriff; Ted Jackson, Sergeant; Brian Lewis, Sergeant; Dustin Johnson, Corrections Officer; Mathew Henning, Corrections Officer; Michael Beach, Corrections Officer; Keith Mayes, Corrections Officer; Bradley Marshall, Corrections Officer; Michael Stumpff, Corrections Officer; Andrew Wittman, Corrections Officer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

887 F.3d 744

David M. HOPPER, Special Administrator of the Estate of Robert Andrew Richardson, Sr., Plaintiff-Appellee,

v.PHIL PLUMMER, Montgomery County Sheriff; Ted Jackson, Sergeant; Brian Lewis, Sergeant; Dustin Johnson, Corrections Officer; Mathew Henning, Corrections Officer; Michael Beach, Corrections Officer; Keith Mayes, Corrections Officer; Bradley Marshall, Corrections Officer; Michael Stumpff, Corrections Officer; Andrew Wittman, Corrections Officer, Defendants-Appellants.

No. 17-3175

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2017

Decided and Filed: April 12, 2018

ARGUED: Keith Hansbrough, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C., Cleveland, Ohio, for Appellants. Jeremy A. Tor, SPANGENBERG, SHIBLEY & LIBER, LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Lynnette Dinkler, Jamey T. Pregon, DINKLER PREGON LLC, Dayton, Ohio, for Appellants. Nicholas A. DiCello, SPANGENBERG, SHIBLEY & LIBER, LLP, Cleveland, Ohio, for Appellee.

Before: BATCHELDER, GRIFFIN, and WHITE, Circuit Judges.

GRIFFIN, Circuit Judge.

Robert Richardson suffered a seizure two days after he was booked into the Montgomery County Jail in Dayton, Ohio. Corrections officers and medical staff responded to the medical call. Despite both a jail policy that prohibited placing restrained inmates in a prone position and a medic's appeal to handcuff Richardson in front, the officers handcuffed him behind his back and restrained him face down on the floor outside his cell. Richardson died after a twenty-two minute struggle during which record testimony indicates he continually stated he could not breathe.

Plaintiff David Hopper, in his capacity as Special Administrator of Richardson's estate, brought this 42 U.S.C. § 1983 action against the corrections officers and Montgomery County Sheriff Phil Plummer.¹ The district court denied defendants' motion for summary judgment on qualified- and statutory-immunity grounds. They appeal that order, and raise the precedential issue of whether Richardson, a civil contemnor detainee, falls within the protections of the Eighth or the Fourteenth Amendment. Because Richardson was sanctioned outside the criminal context, we hold that the Fourteenth Amendment governs his § 1983 claims. The remaining issues either lack merit or fall outside the limited scope of our jurisdiction on interlocutory appeal. We therefore affirm in part and dismiss in part.

I.

A.

In 2009, then-Ohio Governor Ted Strickland issued Executive Order 2009-13S, which addressed the use of prone restraints "across all state systems" and acknowledged "that there is a risk of sudden death when restraining an individual in a prone position." The Ohio Department of Rehabilitation and Correction, among other state departments, was ordered to adopt a policy prohibiting the use of prone restraints, "defined as all items or measures used to limit or control the movement or normal functioning of any portion, or all, of an individual's body while the individual is in a face-down position for an extended period of time." The Montgomery County Jail adopted a use-of-restraints policy that prohibited "placing prisoners who are in restraints in prone or ‘spread-eagle’ positions."

B.

On May 17, 2012, Richardson was arrested on a capias warrant after failing to appear at a child-support enforcement hearing, and was booked into the Montgomery County jail. That same day, a Juvenile Court judge imposed a sentence of up to thirty days on Richardson for civil contempt, but the contempt could be purged and Richardson released upon payment of $2,500 to the Montgomery County Child Support Enforcement Agency.

Two days later, Richardson collapsed in his cell and his cellmate called for medical help. An overhead video camera recorded the twenty-two-minute incident that followed.²

The first officer to respond described Richardson as suffering an apparent seizure. Defendants Sergeant Ted Jackson and Officer Justin Johnson arrived "[l]ess than a minute" later. Richardson seemed lethargic and unbalanced, with blood and saliva coming from his mouth. He was sitting against the wall of his cell, trying to stand up. The officers told Richardson, who was a large man, to "stay down" because they were afraid he would fall down inside his small cell and hurt himself. Jackson and Johnson then pulled Richardson from his cell and placed him face down on the floor a few feet away.

A disoriented Richardson continued trying to stand so Jackson decided "to get him cuffed." By this point, several other defendant officers had arrived, including Sergeant Brian Lewis, Officer Michael Stumpff, Officer Bradley Marshall, and Officer Mathew Henning. A medic and a nurse had arrived as well. Jackson and Johnson, assisted by Lewis, Stumpff, and Henning, cuffed Richardson's hands behind his back. No defendant testified to hearing any instruction to do otherwise.

But the medic testified that he and a nurse "told corrections" at the outset to handcuff Richardson "in the front" and to put him on his back so medical staff could "better assess" him. Sergeant Lewis, said the medic, "overrode" that instruction. According to the medic, it was "impossible to do a thorough exam" of Richardson because he was on his stomach. Once Richardson was handcuffed, the medic tried to administer oxygen. The nurse said she told the officers "that they need[ed] [to] make sure [Richardson] was on his side" to "keep that oxygen on him," and to "get him up and get him to medical." Although Jackson requested a restraint chair at some point during the incident, Richardson stopped breathing and died before defendants attempted to move him.

C.

The district court found that the defendant officers each participated in restraining Richardson during a struggle that waxed and waned in intensity. Sergeants Lewis and Jackson helped handcuff Richardson and supervised the other officers. Officer Johnson placed his knees on either side of Richardson's legs and straddled the "thigh area." Officer Henning was behind Johnson, and placed his left knee on Richardson's lower legs. Officer Stumpff positioned himself near Richardson's head, and was "trying to hold onto [Richardson's left] shoulder[.]" Officer Marshall knelt down next to Richardson's head, placed his knee in front of his right shoulder "to stop him from moving forward," and kept at least one hand on Richardson's shoulders or upper back throughout the incident, applying pressure as needed to control Richardson's movements. The video appears to show Marshall placing his knee on Richardson's arm during the last few minutes of the incident.

Other defendants replaced several of these officers as the incident progressed. Officer Michael Beach replaced Officer Johnson about seven minutes into the incident. After fifteen minutes, Officer Keith Mayes relieved the medic positioned at Richardson's head, and used his hands to prevent Richardson from lifting his head up. Mayes also took control of Richardson's shoulders so he would not roll over. Officer Andrew Wittman arrived last, relieving Stumpff after about eighteen minutes, and held Richardson's left arm to the ground.

After twenty-two minutes, the officers realized Richardson was not breathing and began CPR. Officer Stumpff later acknowledged that Richardson "may have said" during the incident that he could not breathe. Officer Wittman agreed there was concern over Richardson's ability to breathe while restrained. Jason Haag, an inmate housed in the cell next to Richardson's, stated that Richardson "repeatedly ... said he couldn't breathe," and tried "to get up to breathe," but "[defendants] kept pushing him back down until he stopped moving." Keith Wayne, another inmate, testified that he also heard Richardson say "I can't breathe[.]"

Defendants' efforts to revive Richardson were unsuccessful, and a doctor pronounced him dead less than an hour after the incident began. The deputy coroner concluded that Richardson's death was caused by "[c]ardiac arrhythmia." But one of plaintiff's medical experts determined that Richardson suffered a "fatal cardiac arrhythmia" only because the "manner of restraint impaired [his] ability to breath[e.]" Plaintiff's other medical expert agreed Richardson died from restraint asphyxiation. He elaborated that asphyxiation resulted from the "compression of Mr. Richardson's torso, including his upper back and neck[,] while he was subdued in a prone position with his hands cuffed behind his back." This expert explained that if an individual's arms and legs are restrained like Richardson's were, that individual cannot use them to alleviate the compressive pressure, will fatigue "[o]ver time," and his "[r]espiratory movements will ultimately stop."

D.

Plaintiff brought this § 1983 action against defendants. Relevant here, plaintiff alleged that the officers violated Richardson's rights under the Eighth or Fourteenth Amendment by using excessive force against him and by acting with deliberate indifference to his medical needs. Plaintiff further alleged that the officers violated Ohio state law by causing Richardson's wrongful death. Plaintiff also brought official-capacity claims against Sheriff Plummer alleging failure to train and supervise, and unconstitutional jail policy or custom.

The district court denied the officers summary judgment on qualified- and statutory-immunity grounds. Taking the evidence in the light most favorable to plaintiff, the district court determined that jurors "could reasonably conclude that officers applied compressive force upon a restrained Richardson's back, shoulder blades, shoulders, neck, hands, waist, thighs and lower legs throughout much of the twenty-two minute ordeal" and "that Richardson died as a result of position or restraint asphyxia while being restrained in a prone position by multiple corrections officers." It also held that genuine issues of material fact precluded summary judgment in favor of Sheriff Plummer on plaintiff's official-capacity claims.

The officers...