Campbell v. the City of Springboro

• Decision Date: 26 April 2011
• Docket Number: Case No. 1:08–cv–737.
• Citation: 788 F.Supp.2d 637
• Parties: Samuel A. CAMPBELL and Chelsie Gemperline, Plaintiffs,v.The CITY OF SPRINGBORO, OHIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

788 F.Supp.2d 637

Samuel A. CAMPBELL and Chelsie Gemperline, Plaintiffs,

v.The CITY OF SPRINGBORO, OHIO, et al., Defendants.

Case No. 1:08–cv–737.

United States District Court,S.D. Ohio,Western Division.

April 26, 2011.

Douglas Dustin Brannon, Brannon & Associates, Dwight Dean Brannon, Dayton, OH, for Plaintiffs.Lynne M. Longtin, Michael P. Foley, Wilson G. Weisenfelder, Jr., Rendigs, Fry, Kiely & Dennis, LLP, Cincinnati, Oh, For Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AS TO THE CLAIMS OF SAMUEL CAMPBELL AND CHELSIE GEMPERLINE; DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE THE AFFIDAVIT OF PLAINTIFFS' EXPERT, MICHAEL D'AMICO; and GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE THE AFFIDAVIT OF PLAINTIFFS' EXPERT, KYLE K. HEYEN

SUSAN J. DLOTT, Chief Judge.

In this civil rights action against the City of Springboro, Ohio, City Manager Christine Thompson, Chief of Police Jeffrey Kruithoff, Police Officer Nick Clark, and Jane or John Does, Plaintiffs Samuel A. Campbell and Chelsie Gemperline seek relief for injuries they sustained when they were mauled by the same police dog during the course of their arrests in unrelated incidents. In their Second Amended Complaint, Plaintiffs assert fourteen causes of action under federal and Ohio law. Before the Court are the Motion for Summary Judgment on Behalf of Defendants as to the Claims of Plaintiff, Samuel A. Campbell (Doc. 58) and the Motion for Summary Judgment on Behalf of Defendants as to the Claims of Plaintiff, Chelsie Gemperline (Doc. 59). The Court also considers, to the extent they relate to Defendants' Motions for Summary Judgment, Defendants motions to strike the affidavits of two expert witnesses upon who opinions Plaintiffs rely.

For the reasons stated below, the Court DENIES as moot Defendants' Motion to Strike the Affidavit of Plaintiffs' Expert, Michael D'Amico (Doc. 74), and the Court GRANTS in part and DENIES in part Defendants' Motion to Strike the Affidavit of Plaintiffs' Expert, Kyle K. Heyen (Doc. 75). Finally, the Court GRANTS in part and DENIES in part Defendants' Motions for Summary Judgment. (Docs. 58, 59.) The Court DENIES summary judgment as to Plaintiffs' claims against Officer Clark for excessive force in violation of the Fourth Amendment, brought under 42 U.S.C. § 1983, and for assault and battery under Ohio law. The Court also DENIES summary judgment as to Plaintiffs' § 1983 claims for failure to train and/or supervise against the City of Springboro and Chief Kruithoff. The Court GRANTS summary judgment to Defendants as to all remaining claims.

I. BACKGROUNDA. The City of Springboro Police Department Canine Unit

Springboro is a somewhat affluent city with a rather low crime rate. (Kruithoff Dep. 12:2–9.) The Springboro Police Department (SPD) sees only a few violent crimes a year. (Kruithoff Dep. 12:15–19.) Defendant Kruithoff has been Springboro's Chief of Police since April 2002.¹ (Kruithoff Dep. 4:21–5:1.) In keeping with the size of the town, the SPD is a small police department made up of a staff of approximately thirty people. ( Id.) The SPD command staff consists of the Chief of Police, a Lieutenant in charge of Operations, a Lieutenant in charge of Administrative Services, and four Sergeants.² During most of the time period at issue in this case, those positions were filled by Chief Kruithoff, Lieutenant Timothy Parker, Lieutenant Jonathan Wheeler, Sergeant Aaron Zimmaro, Sergeant Dan Bentley, and two other sergeants.

In 2002, when Kruithoff became the SPD Chief of Police, the SPD did not have a canine unit. (Clark I Dep. 61:18–20.) Instead, the SPD relied on assistance from other agencies when police dogs were needed for narcotics investigations and tracking purposes. (Kruithoff Dep. 14:22–15:13; Clark Dep. I 63:15–24.) Believing that a canine program could be a useful public relations tool, Kruithoff sent out a department memorandum to see if any officers were interested. (Kruithoff Dep. 13:4–14:21.) The SPD ultimately selected Officer Nick Clark to form the department's first canine unit. (Kruithoff Dep. 15:14–20; Clark I Dep. 63:3–64:22.) Chief Kruithoff placed Officer Clark in charge of selecting a dog and a training program. (Clark I Dep. 66:18–19.) The only instruction Officer Clark was given as far as choosing a dog was to get a dual purpose dog, meaning a dog that could be trained in both narcotics detection and patrol work. ( Id. at 68:14–69:13.) Based on recommendations from another officer and several members of the Miami Valley Police Canine Association, Officer Clark chose a dog named Spike ³ from Lynwood Kennels, a company that specializes in training canines and their handlers for law enforcement purposes. ( Id. at 66:20–67:2; Woods Dep. 10:20–23.) The canine unit consisting of Officer Clark and Spike was established in 2005 and operated until the fall of 2008 when it was suspended and subsequently decommissioned.

1. Training and Certification

Lynwood Kennels provided the initial core training—a 300–hour canine handling course that Officer Clark and Spike completed in May, 2005. (Clark I Dep. 67:4–10, 72:12–74:13; Wheeler Aff. ¶ 3, Ex. A.) After completing that training, Spike and Officer Clark sought state certification. (Clark I Dep. 74:5–75:3.) According to Officer Clark, the State of Ohio requires that canine units be regularly certified by the Ohio Peace Officer Training Commission and the Office of the Attorney General (“Ohio Training Commission”) in order to remain in compliance. ( Id. at 110:2–23.)

On May 12, 2005, Officer Clark and Spike received two certificates from the Ohio Training Commission. The first signified completion of evaluations for criminal apprehension, canine control, and canine searches. (Wheeler Aff. ¶ 7, Ex. C.) The second certification signified completion of evaluations for tracking, article search, and the detection of marijuana, cocaine, heroin, methamphetamines, and their derivatives. ( Id. ¶ 9, Ex. D.) Both certifications were good for approximately two years. On the same date that they received their initial state certification, Officer Clark and Spike also received accreditation from the North American Police Work Dog Association ⁴ for narcotics detection and for other skills referred to as “Utility Phases,” including obedience, article search, area search, tracking, building search, and aggression control.⁵ ( Id. ¶ 5, Ex. B.)

The SPD deployed Spike in the field immediately after he became state certified. (Clark I Dep. 76:10–20.) Officer Clark was responsible for making sure that Spike fulfilled training requirements. ( Id. at 82:3–5.) Officer Clark believed that he and Spike were supposed to complete eight hours of maintenance training every other week to make sure Spike stayed sharp and did not develop bad habits. ( Id. at 82:6–83:12; Woods Dep. 35:20–39:12.) Brian Woods, the operator of Lynwood Kennels and a master trainer, testified that the monthly maintenance training should encompass all disciplines, including narcotics detection, tracking, obedience, bite training, and reasonable force training with a particular focus on any problem areas. (Woods Dep. 36:15–37:12.) Without such training, the dog's level of obedience may erode overtime and the dog may not respond as well to the handler's commands. ( Id. at 38:7–17.) While Woods recommends that handlers take their dogs through sixteen hours of maintenance training per month, he noted that the amount of monthly training necessary to maintain compliance may vary from dog to dog. ( Id. at 38:19–39:15.)

The evidence shows that Officer Clark and Spike attended three training programs in 2006 and 2007. During the summer of 2006, they attended a five-day North American Police Work Dog Convention in northern Ohio. (Clark I Dep. 88:1–17.) On November 17, 2006, they received a certificate of completion of forty hours of advanced canine law enforcement training at the Miami Valley Police Canine Association. (Wheeler Aff. ¶ 11, Ex. E.) They also attended a forty-hour training workshop at Lynwood Kennels sometime in 2006 or 2007. (Clark I Dep. 89:2–20.)

Nonetheless, Officer Clark admitted that he and Spike did not always engage in maintenance training on a regular basis. For example, Spike received no training between September 19, 2007 and October 21, 2007, the date of the Campbell incident. (Clark I Dep. 188:2–23.) Spike also received no training for over thirty days prior to the Gemperline incident, which occurred on October 11, 2008. ( Id. at 188:24–189:25.) Officer Clark testified that his supervisors did not allot sufficient time for training although they were aware that Spike's training was not current. ( Id. at 190–193.) Prior to both of the bite incidents at issue in this case, Officer Clark notified his supervisors that he was unable to keep up with the maintenance training and repeatedly requested that they allow him time to attend training sessions, but his requests were denied. ( Id. at 190:1–194:10.) At some point, Officer Clark sent a memo to Lieutenant Parker and Lieutenant Wheeler to notify them that his sergeants were not authorizing appropriate training time for him and that they had denied his requests to attend training workshops because they did not want him to work overtime. ( Id. at 190:1–20, 199:21–200:8.) After the Campbell incident occurred, Officer Clark continued to complain about his inability to complete the maintenance training. ( Id. at 201:17–24.) He gave inconsistent testimony regarding the responses he received. At one point during his deposition, he stated that his supervising sergeants sometimes designated more time for him to train after he complained. ( Id. at 199:10–16.) However, when asked if anything in regard to training changed after the Campbell incident, Officer Clark responded “no.” ( Id. at 201:17–20.) He also testified that he continued to voice complaints about lack of training time up...