Gill v. Kovach

• Decision Date: 27 July 2010
• Docket Number: Case No. 4:08-CV-01839
• Citation: 729 F.Supp.2d 925
• Parties: Heidi GILL, Plaintiff, v. Richard KOVACH, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

729 F.Supp.2d 925

Heidi GILL, Plaintiff,

v.Richard KOVACH, et al., Defendants.

Case No. 4:08-CV-01839.

United States District Court,

N.D. Ohio,

Eastern Division.

July 27, 2010.

Allen Schulman, Jr., Stacie L. Roth, Law Office of Allen Schulman, Brian L. Zimmerman, Jeffery C. Lookabaugh,Schulman Zimmerman & Associates, Canton, OH, Martin E. Yavorcik, Canfield, OH, for Plaintiff.

Nick C. Tomino, Tomino & Latchney, Medina, OH, John D. Pinzone, James A. Climer, Mazanec, Raskin Ryder & Keller, Solon, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

DONALD C. NUGENT, District Judge.

Heidi Gill ("Ms. Gill") filed the complaint in this matter on July 31, 2008, raising claims against Officer Richard Kovach ("Officer Kovach"), the City of Warren (the "City"), Warren Chief of Police John Mandopoulos ("Chief Mandopoulos"), and Warren Public Service and Safety Director William D. Franklin ("Mr. Franklin") for violations of her Fourth Amendment rights pursuant to 42 U.S.C. § 1983 (Counts 1 and 2). Ms. Gill also brought state law claims for negligent infliction of emotional distress (Count 3); assault and battery (Count 4); false arrest (Count 5); and punitive damages (Count 6). In January of 2010, Ms. Gill filed a First Amended Complaint adding a claim for interference with or destruction of evidence (Count 7). All of these claims stem from the circumstances surrounding Ms. Gill's arrest on the night of September 2, 2007.

This matter is now before the court on four motions for summary judgment filed by Officer Kovach, the City, Chief Mandopoulos, and Mr. Franklin. (ECF # 53, 54, 83, 86). For the following reasons, Officer Kovach's November 23, 2009 motion for summary judgment (ECF # 53) is granted in part and denied in part; the November 23, 2009 motion for summary judgment filed by City, Chief Mandopoulos, and Mr. Franklin (ECF # 54) is granted; and, the defendants' subsequent motions for summary judgment on Ms. Gill's spoliation of evidence claim (ECF # 83, 86) are granted.

FACTUAL BACKGROUND ¹

In the early morning hours of September 2, 2007, Ms. Gill was drinking at Up A Creek Tavern (the "Tavern") in Warren, Ohio. Due to her conduct, Ms. Gill was asked to leave and was escorted out of the Tavern by Shawn Tisher ("Mr. Tisher"), a security guard. Ms. Gill admits to being highly intoxicated at the time; her recorded blood alcohol content was .30.² Upon exiting the Tavern, Ms. Gill and Mr. Tisher encountered Officer Kovach, a Warren police officer who was on patrol in the area. Mr. Tisher explained the situation to Officer Kovach and Officer Kovach asked Ms. Gill for her name and Social Security number. Ms. Gill replied with an expletive, gave Officer Kovach a false name ³ and a false Social Security number, and ran towards the parking lot. She entered the driver's side of a vehicle belonging to John Turner ("Mr. Turner"), another Tavern security guard.⁴ Ms. Gillclaims that she entered Mr. Turner's vehicle, believing that it was the car of someone who had agreed to give her a ride home. Mr. Turner claims that he had not given Ms. Gill permission to enter his vehicle.

Officer Kovach approached the drivers' side of Mr. Turner's vehicle and twice instructed Ms. Gill to exit the vehicle. Ms. Gill replied by saying "no" and "I am not gonna." Officer Kovach and another witness assert that Ms. Gill locked her arms around the steering wheel and leaned away from the drivers side door. Officer Kovach then deployed a Taser X26 by firing two probes at Ms. Gill's chest.⁵ Officer Kovach then informed Ms. Gill that she was under arrest and instructed her to exit the vehicle again.⁶

Although they both generally agree about how the encounter started, Officer Kovach's and Ms. Gill's renditions of what occurred after the first two probes were deployed vary significantly. Ms. Gill claims that Officer Kovach tasered her a second time, causing her to fall out of the vehicle. She claims that while on her hands and knees, Officer Kovach tasered her a third time and pushed her to the ground by placing his foot on her back. As she attempted to stand, she says that Officer Kovach activated the taser a fourth time, causing her to fall into the vehicle's side panel. Ms. Gill claims that the video tape and the Taser's memory chip confirm that Officer Kovach tasered her a fifth time in stun gun mode and then handcuffed her hands behind her back. At this point, Officer Kovach would had tasered Ms. Gill five times in thirty-six seconds. There is no dispute that Officer Kovach, with the help of Mr. Turner, then loaded Ms. Gill into the police cruiser.

Ms. Gill admits that, while still handcuffed, she screamed and kicked the rear drivers' side window multiple times. After she ceased kicking, she claims Officer Kovach opened the door and tasered her a sixth time, this time firing a second set of probes at her right hip. There is no dispute that Officer Kovach then ordered Ms. Gill to walk to a second police cruiser, which had a "cage," or protective metal barrier that separates the back seat from the front seat. The video tape confirms that Officer Kovach threatened Ms. Gill with another tasering if she did not comply with this command.

Upon exiting the police cruiser, Ms. Gill claims that Officer Kovach did not guide her with his hands but led her by the taser wires. Before reaching the second cruiser, Ms. Gill either stumbled or broke into a run. Officer Kovach tasered her a seventh time. Ms. Gill fell to the ground and was knocked unconscious. Ms. Gill claims that she was not resisting arrest but was unawarethat she was being arrested and was attempting to free herself from what she perceived to be a dangerous situation.

Officer Kovach's original account of the same events is as follows: Ms. Gill, having exited the car after being tasered once, refused to comply with his orders to lay down and put her hands behind her back. Officer Kovach stated that he activated the taser a second time; handcuffed Ms. Gill; and, with the help of Mr. Turner, placed Ms. Gill into his police cruiser. Ms. Gill began screaming and kicking the cruiser's rear window. Officer Kovach also claims that Ms. Gill also attempted to enter the cruiser's front seat. In response, he said that he opened the cruiser's rear door and tasered her a third time. Later, Officer Kovach opened the cruiser's rear door and instructed Ms. Gill to exit and walk to the second cruiser. Rather than going to towards the second cruiser, Ms. Gill ran toward a crowd of people. To prevent Ms. Gill from fleeing, Officer Kovach tasered her a fourth time, causing her to fall and be knocked unconscious.

An Emergency Medical Services ("EMS") team responded and took Ms. Gill to the hospital. Later that morning, Officer Kovach completed a Response to Resistance report form. (ECF # 66-2). The report consisted of three paragraphs handwritten by Officer Kovach. In the report, Officer Kovach explicitly stated that he tasered Ms. Gill several times, including while she was handcuffed inside the cruiser. Id., at 4. That same day, Sergeant Eric Merkel ("Sergeant Merkel"), Officer Kovach's Turn Commander, noted on the report that the force described by Officer Kovach "was reasonable under the circumstances." (ECF # 66-2 at 5). On September 3, 2007, Division Commander Lieutenant Giovannone ("Lieutenant Giovannone") noted on the report that there was "[n]o violation of policy or procedure...." Id. Finally, on September 5, 2007, Chief Mandopoulos also signed off on the report. None of these officers, however, raised any concerns about Officer Kovach's use of force.

On September 18, 2007, Chief Mandopoulos requested that Sergeant J.L. Cole ("Sergeant Cole") commence an investigation of the incident. The next day, Chief Mandopoulos placed Officer Kovach on administrative leave. Sergeant Cole viewed the mobile video recorder footage (the "video") from Officer Kovach's cruiser, met with Ms. Gill and other witnesses, and reviewed numerous statements, policies, and reports. The Ohio Bureau of Criminal Identification & Investigations (the "BCI") also examined the memory chip from Officer Kovach's Taser X26 and found that it had been activated seven times in approximately five minutes. Sergeant Cole submitted a report to Chief Mandopoulos, summarizing his findings and concluding that Officer Kovach violated numerous City policies. Chief Mandopoulos agreed with at least some of Sergeant Cole's findings and suspended Officer Kovach for sixty days without pay.

Although the City has a policy of photographing taser penetration sites after an arrest of a tasered suspect, no such photographs were taken after Ms. Gill's arrest. Furthermore, the clothing that Ms. Gill wore when Officer Kovach tasered her went missing. On October 2, 2007, packages containing Ms. Gill's belongings, including the clothes in question, were sent to the BCI. On April 16, 2008, Sergeant Michael Marret of the Warren Police Department picked up Ms. Gill's clothes and other belongings from the BCI. On October 23, 2009, Ms. Gill deposed Lieutenant Joseph Marhulik ("Lieutenant Marhulik") of the Warren Police Department. At Lieutenant Marhulik's deposition, Ms. Gill learned that her clothing was missing andthat the Warren Police Department could not account for its absence.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.2004). If the movant succeeds, the burden then shifts to the nonmoving party to demonstrate the existence of a material dispute as provided in Rule 56(e)(2):

When a

...