Fiordalisi v. Zubek, No. 1:03 CV 908.
| Decision Date | 27 October 2004 |
| Docket Number | No. 1:03 CV 908. |
| Citation | 342 F.Supp.2d 737 |
| Parties | Roger V. FIORDALISI, Plaintiff, v. Robert ZUBEK, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
William M. Saks, Cleveland Heights, OH, for Plaintiff.
Shawn W. Schlesinger, Steven G. Janik, Janik & Dorman, Cleveland, OH, for Defendant.
Police officer Robert Zubek arrested Roger Fiordalisi, a 56 year old man, outside Hopkins Airport. Fiordalisi brings this action under 42 U.S.C. § 1983, claiming that Zubek intentionally used excessive force during and after the arrest, injuring him, punishing him for exercising his freedom of speech, and violating his rights under the First and Fourth Amendments. Fiordalisi also asserts claims for assault and battery and seeks punitive damages. Zubek claims qualified immunity and moves for summary judgment. For the reasons that follow, the court denies Zubek's motion.
Between 5:00 and 6:00 p.m. on a Friday in October 2002, Fiordalisi was in his car stopped near the northern entrance to the airport baggage area, as he and his wife waited to pick up a niece and nephew. Fiordalisi's car was the fourth of five cars stopped in a no-parking zone, and his motor was running. Seeing Officer Zubek wave his finger at the front of the line of cars and apparently start writing a ticket for the first car, Fiordalisi started to pull away from the curb. Zubek seems to concede that Fiordalisi misinterpreted his finger motion as an instruction to pull away from the area. See Def.'s Mot. At 2. After Fiordalisi had driven a short distance, Zubek came over and said "you're violating a direct order." Fiordalisi said and, according to Zubek, allowed his car to roll fifty to seventy-five feet forward. See Am. Comp. ¶¶ 7-8.
Zubek approached the car and asked to see Fiordalisi's driver's license, and Fiordalisi responded that he did not have it with him. Zubek ordered him to get out of the car, so he did so and put his hands behind his back. Zubek frisked Fiordalisi, handcuffed him, and started to push him toward the airport. While they walked, Zubek jerked Fiordalisi's handcuffed wrists up behind his back three or four times, causing the handcuffs to tighten, apparently to force him to move faster. When Fiordalisi said that Zubek should not be harassing him, Zubek slammed Fiordalisi's head twice into a metal corner of the airport's exterior wall. Fiordalisi claims he was humiliated and afraid and suffered head injuries. See Am. Comp. ¶¶ 9-10 and 17-22; Pl.'s Opp'n, Ex. F.
Fiordalisi contends that even though he never resisted arrest, and was handcuffed Zubek slammed his head into the wall to punish him for his criticism and to deter him from saying anything else. See Am. Comp. ¶¶ 11-13. Zubek claims that Fiordalisi "began to pull away" and, in order to regain control over him, Zubek "pressed Fiordalisi's body against the terminal wall." Zubek admits this caused Fiordalisi's head to hit the terminal wall twice, but he characterizes this as "minimal use of force ... necessary to regain control...." Def.'s Mot. at 3 (citing Zubek aff. ¶¶ 11-14).
Zubek arrested Fiordalisi and transferred him to the police station, where he was charged with driving without a license, operating a motor vehicle in order to flee an officer, and resisting arrest. See Def.'s Mot. at 3 (). Fiordalisi apparently had to spend the night in a cell. See Def.'s Mot. at 3 (). Fiordalisi pled guilty to driving without a license and the other charges were dropped. Zubek concedes that Fiordalisi was licensed, see Def.'s Mot. at 2, but the record does not disclose whether Zubek attempted to verify that fact before arresting, handcuffing and jailing him.
Fiordalisi filed the complaint in May 2003 and added a request for punitive damages in December 2003. Count I asserts claims for assault, battery and excessive, wanton use of force, while Count II asserts a claim for violation of the federal constitutional right to freedom of speech.1 See Am. Comp. ¶¶ 25-32. Zubek moves for summary judgment, asserting the defenses of failure to state a claim, statutory and common law immunity, conduct in good faith and with probable cause, assumption of the risk, failure to mitigate damages and contributory negligence. Both sides seek a jury trial. Fiordalisi seeks $65,000 in compensatory and $100,000 in punitive damages, plus fees and costs under 42 U.S.C. § 1988.
The purpose of a motion for summary judgment is to determine if genuine issues of material fact exist to be tried. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir.2002). The party seeking summary judgment bears the initial burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits establish the absence of genuine issues of material fact. See Hoover, 307 F.3d at 465 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548) (cites omitted). The movant discharges its burden by showing that there is an absence of evidence to support the nonmoving party's case. See id. Summary judgment will be appropriate if the nonmoving party fails to establish the existence of an element essential to its case, and on which it will bear the burden of proof. See id. at 322, 106 S.Ct. 2548
Because Fiordalisi opposes summary judgment, his factual allegations are to be believed and all justifiable inferences drawn in his favor. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). But the ultimate burden of showing a genuine issue of material fact always remains on him. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Title 42 U.S.C. section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Zubek was in uniform and on duty and therefore acting under color of state law. See Am. Comp. ¶¶ 14-16; Ans. ¶ 16. Thus, to survive summary judgment, Fiordalisi must show a genuine issue as to whether Zubek deprived him of a federal right. Because Zubek invokes qualified immunity, Fiordalisi must also show that there is a genuine issue as whether Zubek is immune.
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Garrett v. Fisher Titus Hosp., 318 F.Supp.2d 562, 570 (N.D.Ohio 2004) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992), cert. denied sub nom. Maciariello v. City of Lancaster, 506 U.S. 1080, 113 S.Ct. 1048, 122 L.Ed.2d 356 (1993)).
Determining whether Zubek is immune involves a two-part inquiry: did he violate Fiordalisi's federal rights and, if so, was the right a "clearly established constitutional right of which a reasonable officer would have been aware." Williams v. Cambridge Bd. of Ed., 370 F.3d 630, 636 (6th Cir.2004) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The right cannot be asserted at a high level of generality; rather, the right must have been clearly established "in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable person would understand that what he is doing would violate that right." Rogers v. Gooding, 84 Fed.Appx. 473, 475-76, 2003 WL 22905308, at *3 (6th Cir.2003) (cite omitted).
A claim that a policeman used excessive force in the course of an arrest, investigatory stop or other "seizure" is analyzed under the Fourth Amendment's objective reasonableness standard. See Graham v. Connor, 490 U.S. 386, 392-93, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This requires a balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests. See Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir.1995). Reasonableness is judged "from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Klein v. Long, 275 F.3d 544, 550 (6th Cir.2001) (cites omitted). "Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," the court must pay "careful attention to the facts and circumstances of each particular case, including (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865.
Under Federal Rule of Civil Procedure 56(e), all materials submitted in support of or in opposition to a motion for summary judgment must set forth facts that would be admissible at trial. See Moore v. Holbrook, 2 F.3d 697,...
To continue reading
Request your trial
-
Abdelkhaleq v. Precision Door of Akron
...correct that a court may not consider unauthenticated documents when ruling on a motion for summary judgment. See Fiordalisi v. Zubek, 342 F.Supp.2d 737, 741 (N.D.Ohio 2004) (citing Saleh v. City of Warren, 86 Fed.Appx. 866, 868 (6th Cir.2004)); see also Alexander v. Care-Source, 576 F.3d 5......
-
Faulkner v. Mattina
...or that the officers' actions were adverse and in reaction to that speech, as required by such a claim. See Fiordalisi v. Zubek, 342 F. Supp. 2d 737, 744 (N.D. Ohio 2004). Finally, to the extent count one of his complaint asserts a claim against the officers under the Equal Protection Claus......