Cabaniss ex rel. Cabaniss v. City of Riverside, No. 3:04cv218.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtRice
PartiesAmanda CABANISS, Administrator of the ESTATE OF Kevin CABANISS, Plaintiff, v. CITY OF RIVERSIDE, et al., Defendants.
Docket NumberNo. 3:04cv218.
Decision Date20 March 2006
497 F.Supp.2d 862
Amanda CABANISS, Administrator of the ESTATE OF Kevin CABANISS, Plaintiff,
v.
CITY OF RIVERSIDE, et al., Defendants.
No. 3:04cv218.
United States District Court, S.D. Ohio, Western Division.
March 20, 2006.

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Dwight Dean Brannon, Dayton, OH, for Plaintiff.

Boyd W. Gentry, Jeffrey Charles Turner, Surdyk, Dowd & Turner Co., L.P.A., Dayton, OH, for Defendants.

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DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY (DOC. # 35); DECISION AND ENTRY OVERRULING IN PART AND OVERRULING, AS MOOT, IN PART PLAINTIFF'S MOTION IN LIMINE AND/OR FOR SANCTIONS (DOC. # 39); DECISION AND ENTRY OVERRULING PLAINTIFF'S MOTION TO STRIKE (DOC. # 41); DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT GEORGE BROWN (DOC. # 47); DECISION AND ENTRY SUSTAINING MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN FOR SUMMARY JUDGMENT (DOC. # 60); DECISION AND ENTRY OVERRULING, AS MOOT, MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN TO STRIKE TRANSCRIPT OF ALBERT FUGATE INTERVIEW (DOC. # 64); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN TO STRIKE DECLARATION OF JAMES MARSH (DOC. # 66); DECISION AND ENTRY SUSTAINING PLAINTIFF'S MOTION FOR LEAVE TO FILE AFFIDAVIT OF ALBERT FUGATE (DOC. # 68); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION OF DEFENDANTS OTHER THAN GEORGE BROWN TO STRIKE AFFIDAVIT AND DECLARATION OF ALBERT FUGATE (DOC. # 77); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.


Kevin Cabaniss ("Cabaniss") spent much of May 21, 2003, drinking at the residence of his friend, Albert Fugate ("Fugate"), located at 6015 Hendon Avenue in the City of Riverside, Ohio ("Riverside"). Cabaniss became so intoxicated that he was vomiting and speaking incoherently.1 After having became frustrated with Cabaniss' behavior inside his home, Fugate took his friend outside and left him there until he was able to sober up. Left outside by Fugate, Cabaniss walked to a neighboring house, where he broke the glass in an outdoor lamp. Cabaniss calmed down and returned to a grassy area between Fugate's and his neighbor's houses, where he laid down. Thereafter, someone then called 911, and Defendants David Craine ("Craine"), Jason Carlton ("Carlton") and Robert Naff ("Naff"), police officers employed by Riverside, were dispatched to that residence. Craine was the first to arrive, followed shortly thereafter by Carlton and then Naff. Craine observed Cabaniss lying on the ground, acting agitated and clenching his fists.2 Nevertheless, Cabaniss appeared to be coherent to the officers, although under the influence of alcohol.

When the officers arrived, a number of Cabaniss' friends, including Fugate, came outside the residence. Craine asked one of them whether Cabaniss was diabetic. That individual indicated that he did not believe that Cabaniss suffered from that medical condition, although he had "freaked out" after consuming a large

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amount of alcohol. In response to an officer's inquiry, Fugate indicated that Cabaniss was suicidal and that he had attempted suicide in the past.3 Craine requested that paramedics be sent to the location in order to check upon Cabaniss' medical condition.

When the officers attempted to communicate with Cabaniss, he spit at them, as a result of which Carlton told Cabaniss that he (Carlton) would kick him (Cabaniss) in the teeth if he spit at the officers again. When Cabaniss insisted upon spitting at Carlton again, the officer flipped Cabaniss onto his stomach, handcuffed him and placed him under arrest, rather than kicking out his teeth. In order to accomplish that end, Carlton attempted to place Cabaniss' hands behind his back, while he (Cabaniss) was lying on his stomach. Cabaniss, however, resisted, and Craine assisted Carlton in handcuffing Cabaniss. While Carlton walked Cabaniss to his cruiser, the latter cursed and threatened to kill the officers.

After Cabaniss had been seated in the back of Carlton's cruiser, Defendants Edward Kronenberger ("Kronenberger") and Shon Smith ("Smith"), paramedics employed by Riverside, arrived at the scene. Kronenberger opened the door to the cruiser and Cabaniss got out. The paramedic introduced himself and assured Cabaniss that he was there to help him, asking him if he was injured or needed medical attention. Cabaniss responded to Kronenberger's questions with additional cursing and threats against the paramedic and his family. Cabaniss would not permit Kronenberger to touch him during the paramedic's assessment of his medical condition. The paramedic noticed that Cabaniss smelled of alcohol and was agitated. However, since he was not able to determine that Cabaniss was injured or in need of medical attention, Kronenberger told him to sit in the back of the police cruiser.

After assisting Cabaniss back into the cruiser, Kronenberger spoke wit the bystanders at the scene. One of them told Kronenberger that Cabaniss had been drinking and that he had destroyed a light. That individual also told the paramedic that Cabaniss had been acting mental, which Kronenberger interpreted as describing Cabaniss' recent behavior. Kronenberger found that Cabaniss' speech was slurred, that he smelled of alcohol and that his behavior was consistent with the use of same. Kronenberger also concluded that Cabaniss had not exhibited any signs of mental illness. Believing that a complete assessment of Cabaniss had been completed, Kronenberger and Smith, the paramedics, left Fugate's residence on Hendon.4

As Carlton started to drive away from that location, with Cabaniss in the back seat of his cruiser,5 Craine pulled his cruiser next to that of his fellow officer. While the two officers conversed, Craine noticed that Cabaniss was pushing his feet on the plexiglass divider in Carlton's cruiser, as well as hitting his head on it. Although Carlton warned Cabaniss a number of times to stop kicking and hitting his head on the plexiglass, the latter ignored those warnings. Carlton then rolled down the back window in his cruiser and told Cabaniss that he would be sprayed with pepper spray if that behavior continued. Cabaniss ignored that warning as he had the others. As a consequence, Carlton sprayed Cabaniss with pepper spray, and the latter lowered his feet and stopped kicking the plexiglass divider.

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In order to clean the pepper spray from Cabaniss, Carlton transported him to the Riverside Police/Fire Station.6 Craine also proceeded to that location. Upon arriving at the Riverside Police/Fire Station, Carlton parked his cruiser, and Naff, who had also returned to that location, took a picture of Cabaniss with pepper spray on him. The officers then rinsed that substance off Cabaniss' face, using a garden hose. Thereafter, as Carlton was using that hose to clean the door of his cruiser, Cabaniss indicated that he was feeling better and asked if he could stand up outside the cruiser. Both Craine and Carlton told him that he could not. Although Cabaniss initially complied with the officers' directive, causing Craine to step away from the cruiser, he apparently changed his mind, stood straight up, took a few steps and started to fall or to stumble forward. Carlton reached for Cabaniss and was able to put a hand on him; however, Cabaniss was able to break loose, thus foreclosing Carlton's efforts to prevent him from falling. Cabaniss fell, striking his head on the concrete floor.

Carlton helped Cabaniss into a sitting position, and both he and Craine noticed a bump on Cabaniss' head. Craine went inside the Station to obtain medical assistance. Kronenberger and a firefighter accompanied Craine outside. When he got outside, Kronenberger saw Cabaniss sitting next to Carlton. Although the officer was attempting to control him, Kronenberger observed Cabaniss purposefully lunge away from Carlton and strike his head on the ground. Kronenberger and other Riverside Fire Department personnel treated Cabaniss at the Riverside Police/Fire Department and transported him to the Miami Valley Hospital. Cabaniss subsequently died as a result of swelling on his brain.

After he learned that Cabaniss had died, Defendant George Brown ("Brown"), who was then Chief of the Riverside Police Department, ordered an internal investigation, which was conducted by officers employed by the Huber Heights Police Department.

Plaintiff brings this litigation, seeking compensation for damages suffered as a result of the death of her father, Kevin Cabaniss ("Cabaniss"). She brings this action against Riverside, James Onello ("Onello"), Ken Curp ("Curp"), Sara Lommatzsch ("Lommatzsch"), Shirley Reynolds ("Reynolds"), Johnie Doan ("Doan"), Vern Best ("Best"), Mike Smith, Jim Weaver ("Weaver"), Brown, D.K. Johnson ("Johnson"), Carlton, Craine, Naff, Dan Alig ("Alig"), Kronenberger, and Smith.7 All individual Defendants, except Johnson, have been sued in their individual and official capacities.8 In her Amended Complaint (Doc. # 23), Plaintiff sets forth 23 claims for, relief, to wit: 1) a claim under 42 U.S.C. § 1983 ("§ 1983"), alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Fourth and Eighth Amendments by using excessive force and cruel and unusual punishment (First Claim for Relief); 2) a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the federal constitution by failing to protect him (Second Claim for Relief); 3) a claim under § 1983, alleging that Kronenberger and Smith violated

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Cabaniss' rights under the federal constitution by failing to protect him (Third Claim for Relief); 4) a claim under § 1983, alleging that Craine, Carlton and Naff violated Cabaniss' rights under the Due Process Clause of the Fourteenth...

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6 practice notes
  • Johnson v. Hazou, Case No.:1:15CV1811
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • February 13, 2017
    ...(granting summary judgment on immunity); Howard, 2007 WL 2840369, at *9 (granting summary judgment); Cabaniss v. City of Riverside, 497 F.Supp.2d 862, 895-897 (S.D. Ohio 2006), aff'd, 2007 WL 1047588 (6th Cir. Apr. 6,...
  • Hazelrigg v. United States, CIV. 12-5034-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 26, 2015
    ...The transcript was not admissible under Fed. R. Evid. 801(c) and 802. See Cabaniss ex rel. Estate of Cabaniss v. City of Riverside, 497 F. Supp. 2d 862, 876 (S.D. Ohio 2006) (finding that the transcript of a third-party police interview to constitute inadmissible hearsay), aff'd sub nom. Ca......
  • Griffin v. Kyle, Case No. 2:10-cv-664
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • January 17, 2012
    ...bodies and not individual supervisors such as the Warden. See, e.g., Cabaniss ex rel. Estate of Cabaniss v. City of Riverside, 497 F.Supp. 2d 862 (S.D. Ohio 2006), aff'd 231 Fed. Appx. 407 (6th cir. 2007). Further, as the Court stated in Leonard v. Compton, 2005 WL 1460165, *8 (N.D. Ohio Ju......
  • Fakhri v. Louisville-Jefferson Cnty. Metro. Gov't, CIVIL ACTION NO. 3:19-CV-00050-GNS-RSE
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • April 30, 2020
    ...as these 'interviews' to be sworn in order to be considered by the court."); Cabaniss ex rel. Estate of Cabaniss v. City of Riverside, 497 F. Supp. 2d 862, 876 (S.D. Ohio 2006) ("[T]he transcript of the [police] interview of [a witness] is inadmissible hearsay. Moreover, the transcript of t......
  • Request a trial to view additional results
6 cases
  • Johnson v. Hazou, Case No.:1:15CV1811
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • February 13, 2017
    ...(granting summary judgment on immunity); Howard, 2007 WL 2840369, at *9 (granting summary judgment); Cabaniss v. City of Riverside, 497 F.Supp.2d 862, 895-897 (S.D. Ohio 2006), aff'd, 2007 WL 1047588 (6th Cir. Apr. 6,...
  • Hazelrigg v. United States, CIV. 12-5034-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 26, 2015
    ...The transcript was not admissible under Fed. R. Evid. 801(c) and 802. See Cabaniss ex rel. Estate of Cabaniss v. City of Riverside, 497 F. Supp. 2d 862, 876 (S.D. Ohio 2006) (finding that the transcript of a third-party police interview to constitute inadmissible hearsay), aff'd sub nom. Ca......
  • Griffin v. Kyle, Case No. 2:10-cv-664
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • January 17, 2012
    ...bodies and not individual supervisors such as the Warden. See, e.g., Cabaniss ex rel. Estate of Cabaniss v. City of Riverside, 497 F.Supp. 2d 862 (S.D. Ohio 2006), aff'd 231 Fed. Appx. 407 (6th cir. 2007). Further, as the Court stated in Leonard v. Compton, 2005 WL 1460165, *8 (N.D. Ohio Ju......
  • Fakhri v. Louisville-Jefferson Cnty. Metro. Gov't, CIVIL ACTION NO. 3:19-CV-00050-GNS-RSE
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • April 30, 2020
    ...as these 'interviews' to be sworn in order to be considered by the court."); Cabaniss ex rel. Estate of Cabaniss v. City of Riverside, 497 F. Supp. 2d 862, 876 (S.D. Ohio 2006) ("[T]he transcript of the [police] interview of [a witness] is inadmissible hearsay. Moreover, the transcript of t......
  • Request a trial to view additional results

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