Ciminillo v. Streicher

Decision Date17 January 2006
Docket NumberNo. 04-4346.,04-4346.
Citation434 F.3d 461
PartiesKyle CIMINILLO, Plaintiff-Appellant, v. Thomas STREICHER; Daniel Hills; Richard Janke, Defendants, Gerald Knight; City of Cincinnati, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Kenneth L. Lawson, Lawson & Associates, Cincinnati, Ohio, for Appellant. Richard Ganulin, City Solicitor's Office, Cincinnati, Ohio, for Appellees.

Before: MARTIN, COLE, and GILMAN, Circuit Judges.


COLE, Circuit Judge.

Plaintiff-Appellant Kyle Ciminillo filed a lawsuit pursuant to 42 U.S.C. § 1983, after he was allegedly shot in the face with a beanbag propellant during the course of a riot. The district court granted summary judgment to Defendant-Appellee Gerald Knight on Ciminillo's excessive-force claim, and to Defendant-Appellee City of Cincinnati on Ciminillo's failure-to-train claim. Ciminillo appeals that decision. For the following reasons, we REVERSE the district court's order granting summary judgment to Officer Knight and REMAND for further proceedings. We AFFIRM the district court's order granting summary judgment to the City of Cincinnati.


On May 4, 2002, Ciminillo was at home playing video games when his roommates told him about a nearby street party on Stratford Avenue in Cincinnati, Ohio. They went to the area of the party and, within minutes, the crowd began moving up the street. Ciminillo saw a friend standing on a porch, and spent several minutes talking with him. Meanwhile, members of the crowd had become rowdy; some had set fires in the street and were throwing bottles at police officers and civilians. Fifteen police officers in riot gear walked down Stratford Avenue to clear the crowd. The officers ordered the crowd to disperse via megaphones. As Ciminillo attempted to leave his friend's house, he saw officers fire approximately six beanbag shots at the crowd around him. Ciminillo tried to leave through his friend's backyard, but a property owner with a bat refused to allow him onto the adjacent property. Ciminillo could see a kneeling police officer firing beanbag propellants randomly at the crowd, could hear the "beans" falling on the concrete, and saw a beanbag explode approximately two feet above a girl's head. During a pause in the shots, Ciminillo alleges that he slowly walked towards the officers with his hands above his head. After advancing about ten feet, Officer Gerald Knight shot him, allegedly without provocation and at point blank range, in the chin and chest with a beanbag propellant. Upon being shot, Ciminillo alleges that he grabbed a walkway pole and lay on the ground. As he lay there, officers approached Ciminillo and told him to stay down. Once he did get up, Ciminillo alleges that he was ordered by another officer to go to the end of the street to report to an officer there. As a result of the shooting, Ciminillo needed twenty stitches in his chin. He also incurred a bruised lung and a permanent facial scar.

Although their account of the riot on Stratford Avenue is substantially similar to Ciminillo's, the defendants' account of the shooting itself differs. According to the defendants, Ciminillo was shot while in the act of throwing an unknown object in the direction of the police. Furthermore, the defendants allege that after being struck by the beanbag, Ciminillo was told to report to officers at the end of the street only for the purpose of having his injury examined.

Pursuant to 42 U.S.C. § 1983, Ciminillo filed a lawsuit in district court, alleging violations of his Fourth and Fourteenth Amendment rights, as well as state law claims of assault, battery, and intentional infliction of emotional distress. The district court dismissed with prejudice the federal claims alleged against several defendants; those claims are not before us. After converting the defendants' motion to dismiss into a motion for summary judgment, the district court granted the defendants summary judgment as to Ciminillo's claims for excessive-force and failure-to-train as alleged against Officer Knight and the City of Cincinnati. Having dismissed all of Ciminillo's federal claims, the district court then declined to exercise supplemental jurisdiction over the state claims pending against Knight. This appeal follows.


We review a district court's grant of summary judgment de novo. Myers v. Potter, 422 F.3d 347, 352 (6th Cir.2005). In conducting that review, we must assume the truth of the non-moving party's evidence and construe all inferences from that evidence in the light most favorable to the non-moving party. Id. A genuine issue of material fact exists when there is sufficient evidence for a trier of fact to find for the non-moving party. A "mere scintilla" of evidence will not be enough for Ciminillo, the non-moving party, to withstand summary judgment. Skousen v. Brighton High School, 305 F.3d 520, 526 (6th Cir.2002). Furthermore, Ciminillo may not rest on his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Excessive-force Claim

In granting Knight's motion for summary judgment, the district court analyzed Ciminillo's excessive-force claim under the Fourteenth Amendment, as opposed to the Fourth Amendment, because it found that the incident giving rise to the lawsuit did not involve a search or seizure. The district court held that Knight was entitled to qualified immunity because the record did not establish that Knight's conduct violated Ciminillo's Fourteenth Amendment rights.

Ciminillo argues that the district court erred in analyzing his excessive-force claim under the Fourteenth Amendment. Under the Fourth Amendment, Knight would be liable for his conduct if it were unreasonable. "[T]he Fourth Amendment protects against only unreasonable seizures, it is not a guarantee against unreasonable or outrageous official conduct generally." Ewolski v. City of Brunswick, 287 F.3d 492, 505 (6th Cir.2002). Under the Fourteenth Amendment, however, Ciminillo must establish that Knight's conduct "shocked the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Graham v. Connor, 490 U.S. 386, 393, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

It is established law that if the incident out of which litigation arises is neither a search nor a seizure, an excessive-force claim will not be analyzed under the Fourth Amendment. In Graham, the Supreme Court held that all claims that police officers used excessive-force in the course of an arrest, investigatory stop, or other seizure should be analyzed under the rubric of the Fourth Amendment as opposed to the Fourteenth Amendment. Id., 490 U.S. at 395, 109 S.Ct. 1865. Yet the Court has subsequently recognized that the Graham rule only applies when a constitutional claim is covered by a specific amendment. United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Alleged conduct that does not implicate a constitutional right protected by another amendment will be analyzed under the substantive due process component of the Fourteenth Amendment. Id. Thus, in determining whether to apply the Fourth or the Fourteenth Amendment to Ciminillo's excessive-force claim, the proper inquiry is whether Ciminillo was seized. County of Sacramento v. Lewis, 523 U.S. 833, 842-43, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

In Brower v. County of Inyo, the Supreme Court held that:

[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.

489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (emphasis in original). In both Brower and Lewis, a police officer accidentally struck and killed a fleeing motorist during a high-speed chase. In both cases, the Supreme Court held that there was no seizure, because in each case the police sought to stop the suspect only by flashing lights and continued pursuit, and had not intended to stop the car by way of the accident. Id. at 597, 109 S.Ct. 1378. The Court concluded in Brower that had the police cruiser pulled alongside the fleeing car and sideswiped it, the resulting crash would have been a seizure. Id.

Following Lewis, we have declined to analyze a claim under the Fourth Amendment when the plaintiff is accidentally injured during the seizure of a third party. In Claybrook v. Birchwell, this Court utilized the Fourteenth Amendment to analyze the claim of a plaintiff who was shot by the police during the police's attempt to apprehend a third person:

[T]he Fourth Amendment `reasonableness' standard does not apply to section 1983 claims which seek remuneration for physical injuries inadvertently inflicted upon an innocent third party by police officers' use of force while attempting to seize a perpetrator, because the authorities could not `seize' any person other than one who was a deliberate object of their exertion of force.

199 F.3d 350, 359 (6th Cir.2000) (emphasis in original) (citing Brower, 489 U.S. at 596, 109 S.Ct. 1378). See also Ewolski, 287 F.3d at 507 (wife and son were not seized when police gained control of their home in order to restrain the movement of a third party).

Unlike the plaintiffs in Claybrook and Ewolski, Ciminillo was not collaterally injured by an assertion of force against a third party; he was the direct target of police conduct. In holding that the Fourth Amendment does not apply here, the district court reasoned that Knight's use of force was not accompanied by an...

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