Burgess v. Fischer, 12–4191.

Citation735 F.3d 462
Decision Date01 November 2013
Docket NumberNo. 12–4191.,12–4191.
PartiesLucas BURGESS; Angela Burgess, Plaintiffs–Appellants, v. Sheriff Gene FISCHER, in his individual and official capacity; the Board of County Commissioners of Greene County, Ohio; Maj. Eric Prindle, Deputy Joshua E. Barrett, Deputy Glen E. McKinney, and Deputy Matthew C. Sortman, in their individual and official capacities; D. Jordan, LPN, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)


ARGUED:Matthew C. Schultz, Brannon & Associates, Dayton, Ohio, for Appellants. Kevin A. Lantz, Surdyk, Dowd & Turner Co., L.P.A., Miamisburg, Ohio, for Appellees. ON BRIEF:

Matthew C. Schultz, Dwight D. Brannon, Brannon & Associates, Dayton, Ohio, for Appellants. Kevin A. Lantz, Edward J. Dowd, Surdyk, Dowd & Turner Co., L.P.A., Miamisburg, Ohio, for Appellees.

Before: MOORE, CLAY, and WHITE, Circuit Judges.


CLAY, Circuit Judge.

Plaintiffs Lucas and Angela Burgess (collectively Plaintiffs) appeal the summary judgment order that dismissed their excessive force, failure to intervene, deliberate indifference to a serious medical need, and municipal liability claims raised pursuant to 42 U.S.C. § 1983, and the Fourth and Fourteenth Amendments, as well as various state law claims, against Defendants. The district court granted Defendants summary judgment on all claims on the basis of qualified immunity, state law immunity, or failure to set forth sufficient facts to establish a prima facie case. Because we find that the right to be free from excessive force for pre-trial detainees in the booking process was clearly established under the Fourth Amendment at the time of this incident, we hold that the district court erred in failing to review the excessive force claim for reasonableness. Upon considering the proper standard of liability, it is clear that material facts are still in dispute, and thus, the district court erred in granting summary judgment on this claim, as well as on the negligence, assault, battery, loss of consortium, intentional infliction of emotional distress, and spoliation of evidence claims under state law.

For the following reasons, we REVERSE in part the judgment of the district court granting Defendants summary judgment on Plaintiffs' § 1983 excessive force claim under the Fourth Amendment, as well as the state law claims of negligence, assault, battery, loss of consortium, intentional infliction of emotional distress, and spoliation of evidence, VACATE the district court's grant of summary judgment on Plaintiffs' civil conspiracy claim, and REMAND for further proceedings consistent with this opinion; we AFFIRM with respect to all other claims on appeal.

A. Factual Background

On January 23, 2009, Lucas Burgess (Burgess) was pulled over by police for a routine traffic stop for speeding, but was found to be under the influence of alcohol and the prescription drug Paxil. After failing several field sobriety tests, Burgess was placed under arrest for driving while intoxicated, in violation of Ohio Rev.Code § 4511.19. He admits to being uncooperative with the arresting officer, Ohio State Highway Patrol Trooper David Griffith. His resistance at the scene caused Griffith and his partner to perform a “takedown”—a tackle to the ground—on Burgess in order to subdue him and place him in handcuffs. However, according to Burgess and Griffith, Burgess did not suffer any apparent injuries from the takedown at the scene. Burgess' disruptive behavior continued while in transport to the Greene County Jail. He was belligerent and yelled expletives at Griffith, who in turn forewarned officials at the jail that he was bringing in an irate arrestee for booking.

Several officials awaited Burgess' arrival, including the following defendants: Green County Deputy Sheriffs Joshua Barrett and Glen McKinney; Green County Corrections Officer Matthew Sortman; and Debbie Jordan, who worked as a nurse at the jail. Upon his arrival, Burgess was handed over to Barrett and McKinney, who attempted to search his person some time shortly after 10:00 p.m. as part of the booking process. At some point during the search, Barrett and McKinney performed a takedown on Burgess.

The parties dispute whether Burgess was noncompliant before the takedown and the effect the takedown had on Burgess. According to Burgess, he was physically compliant and was not actively resisting the search, but was nonetheless knocked unconscious immediately after asking one of the officers, “while you're down there, you want to give me a blow job?” (R.44, Am. Compl. ¶ 36; R.84, Burgess' Depo., PID # 1019.) Griffith, who was still present at the time of the takedown, noticed that Burgess was bleeding from “the face or head area.” (R.86, Ex. 4, PID # 1573–74.) Burgess asserts that he did not awake until several hours later at around 2 or 3 a.m. with excruciating pain in his face and head, and a broken tooth. He asked for medical attention, which Jordan provided. She gave Burgess ibuprofen, and advised him that he merely had contusions but could request further medical attention if he wished to do so.

In contrast, Defendants assert that Burgess was irate and attempting to leave the mat area where the search was being conducted, and that he failed to comply with orders to stand still. Burgess was warned that his continued noncompliance would result in a takedown. Burgess did not heed the warning, and McKinney ordered the takedown after Burgess' “blow job” remark and continued physical resistance. Defendants assert that the takedown lasted no more than ten seconds, and at no time was Burgess unconscious. Jordan assessed a conscious Burgess for injuries right after the takedown, and observed only “a small cut, bruising and some swelling in the vicinity of his left eye” and “a small amount of bruising and redness on his wrists and hands.” (R.87–4, Jordan Aff., PID # 1657.) In her view, there were no injuries that warranted treatment or transport to a hospital, even when she again assessed Burgess' injuries later at his holding cell where he displayed a broken tooth. Jordan provided him with ibuprofen, and Burgess made no further requests for medical attention by the time Jordan completed her shift at 12:45 a.m. Burgess completed the booking process some time after 3:00 a.m.; and, according to Defendants, the prolonged process resulted from Burgess being combative and intoxicated rather than unconscious.

Neither party disputes that shortly after 3 a.m., Burgess completed a “Medical Screening Form,” indicating that he had “no visible signs of trauma or illness,” “no emergent illness or injury,” and “no other medical/physical conditions of which the Jail should be aware.” ( Id. at PID # 1658, 1660–64.) Jordan signed the form when she returned for her next shift later that day. Upon his release, however, Burgess admitted himself into a nearby hospital where CT scans revealed that he had a “displaced left posterior lateral and inferior orbital wall fractures” and “moderate muscosal thickening of the left maxillary sinus from a displaced left anterior medial and posterolateral maxilla wall fractures.” (R.85, Dr. Joseph Paris Depo., PID # 1274.) The fractures to Burgess' jaw and skull required surgery.

Despite his injuries, Burgess never contacted the Ohio State Highway Patrol or Greene County to complain or report the incident. Nonetheless, a routine internal investigation was conducted by the now-retired jail administrator, Defendant Major Eric Prindle, in accordance with police policy concerning any use of physical force. After speaking with the officials involved with the incident and reviewing their written reports, Prindle found that Barrett, McKinney, and Jordan followed the Green County Sheriff's policies regarding arrestee intake, medical screening, and the use of force. Sheriff Gene Fischer approved the investigation and its findings. The videotape evidence of the incident was destroyed pursuant to a five-day document retention policy.

B. Procedural History

In January 2010, Plaintiffs filed the instant action against Defendants Griffith, Barrett, McKinney, Sortman, Prindle, and Fischer, individually and in their official capacities; Jordan in her individual capacity; and the Greene County Board of Commissioners (hereinafter Board).1 They asserted constitutional claims for the use of excessive force, failure to intervene, denial of health care, violation of policies and procedures, and failure to train, supervise, and discipline under 42 U.S.C. § 1983, and the Fourth and Fourteenth Amendments. They also asserted numerous state law claims, including negligence, assault, battery, loss of consortium, intentional infliction of emotional distress, conspiracy to falsify reports, spoliation of evidence, medical negligence, and civil conspiracy. Defendants moved for summary judgment on all claims, while Plaintiffs moved for partial summary judgment on Defendants' asserted affirmative defenses. The district court granted Defendants' motion in full and found Plaintiffs' motion moot. The official capacity claims against the individual defendants were dismissed as duplicative municipal liability claims, while the remaining claims were dismissed based on either qualified immunity, state law immunity, or failure to establish a prima facie case. See Burgess v. Fischer, 890 F.Supp.2d 845 (S.D.Ohio 2012). Plaintiffs timely appealed the judgment.

I. Standard of Review

We review the district court's grant of summary judgment on qualified immunity grounds de novo. Simmonds v. Genesee Cnty., 682 F.3d 438, 444 (6th Cir.2012). A moving party is entitled to summary judgment if the pleadings, the discovery and the disclosure materials on file, and any affidavits “show [ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). There is no genuine issue for trial where the...

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