Goodwin ex rel. Nall v. City of Painesville

• Decision Date: 19 March 2015
• Docket Number: No. 14–3120.,14–3120.
• Citation: 781 F.3d 314
• Parties: Elizabeth GOODWIN, guardian and next friend on behalf of David Lee Nall; Rebecca Carlucci, Plaintiffs–Appellees, v. CITY OF PAINESVILLE; Roberto Soto, Jason Hughes, Matthew Collins, and Ross Tuttle, individually and in their official capacities as employees of the City of Painesville, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

781 F.3d 314

Elizabeth GOODWIN, guardian and next friend on behalf of David Lee Nall; Rebecca Carlucci, Plaintiffs–Appellees

v.CITY OF PAINESVILLE; Roberto Soto, Jason Hughes, Matthew Collins, and Ross Tuttle, individually and in their official capacities as employees of the City of Painesville, Defendants–Appellants.

No. 14–3120.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 8, 2014.

Decided and Filed: March 19, 2015.

ARGUED:Timothy T. Reid, Mansour, Gavin, Gerlack & Manos Co., L.P.A., Cleveland, Ohio, for Appellants.

Alphonse A. Gerhardstein, Gerhardstein & Branch Co LPA, Cincinnati, Ohio, for Appellees. ON BRIEF:Timothy T. Reid, Mansour, Gavin, Gerlack & Manos Co., L.P.A., Cleveland, Ohio, for Appellants. Alphonse A. Gerhardstein, Gerhardstein & branch Co LPA, Cincinnati, Ohio, for Appellees.

Before: KEITH, MOORE, and STRANCH, Circuit Judges.

OPINION

STRANCH, Circuit Judge.

Plaintiffs David Lee Nall and Rebecca Nall¹ filed this case following an incident in which Painesville Police Department Officers, initially responding to a noise issue, entered their apartment and tasered Mr. Nall for a total of 26 seconds. During the tasering, Mr. Nall began foaming at the mouth, stopped breathing, and went into cardiac arrest. He was rushed to a hospital, where he remained for two weeks. As a result of his cardiac arrest, Mr. Nall suffers from anoxic brain injury —injury to the brain due to lack of oxygen—and his mental functioning remains greatly impaired. Both Nalls were charged with disorderly conduct as a result of the incident, though charges against them were later dropped.

The Nalls allege several constitutional claims under 42 U.S.C. § 1983 and several state law claims against the Officers. The Officers sought summary judgment on the basis of qualified immunity for the federal claims and immunity under Ohio state law for the state law claims. The district court denied the Officers immunity with respect to all contested claims against them. This appeal followed. We AFFIRM the judgment of the district court.

I. FACTUAL BACKGROUND

The Nalls were hosting a gathering of about seven people in their second-floor apartment in the early morning hours of July 26, 2010. At around 1:30 a.m., two of the guests were outside arguing with the Nalls' downstairs neighbor. A police dispatcher sent Painesville Police Department Officers Roberto Soto and Jason Hughes to the Nalls' address, telling them that there was a disturbance outside, possibly a fight. Ms. Nall could hear her guests arguing outside and asked them to come back in when she saw a police cruiser slowly drive down her street.

When Officers Soto and Hughes arrived, the downstairs neighbor told them that the disturbance was coming from the Nalls' apartment on the house's second floor. As Officer Soto stood with the neighbor at the side of the house, he could not hear any noise emanating from the Nalls' residence, but as he approached the rear stairway access to their apartment he could hear yelling coming from within. Officers Soto and Hughes knocked on the Nalls' back door and both David and Rebecca Nall answered. Mr. Nall was wearing only blue jeans, without a shirt or shoes on, and was breathing heavily and sweating. The officers told the Nalls there had been a complaint of some noise, and Ms. Nall responded that some people had been outside, but she had brought them in and everyone would try to keep it down. Mr. Nall acted agitated by the officers' presence at the door, but Ms. Nall said she would get him to calm down. According to Ms. Nall, after Officers Soto and Hughes left, it was “very loud” in the apartment because the guests had been drinking and “people were trying to talk over top of each other.” Mr. Nall was mad and was saying he did not want the police there.

Ms. Nall went into the kitchen at that time.

Rather than leaving after telling the Nalls to keep the noise down, the Officers remained at the end of the Nalls' driveway because they could hear loud voices coming from the apartment. According to the Officers, as the noise continued and they started seeing neighbors come out, they headed back to the Nalls' apartment to make an arrest or give a citation for the noise. As Officers Soto and Hughes approached the apartment for the second time, a woman later identified as Michelle Prochaska came down the stairs. The Officers state that she told them Mr. Nall was “crazy,” had ripped her necklace off, and had said he was going to kill everyone in the apartment and the police. The officers radioed for backup, then continued to the apartment door with the intention of arresting Mr. Nall for disorderly conduct.

When Officers Soto and Hughes came back, Ms. Nall was back in the living room, from where she heard Mr. Nall answer the door, an officer ask him to step outside, and his response that he did not have to step outside. As Mr. Nall returned to living room, Ms. Nall heard a loud noise that sounded as if the officers had kicked the front door open. Officers Soto and Hughes entered the apartment and Ms. Nall saw Officer Soto discharge a Taser at Mr. Nall from about six feet away. She heard a buzzing sound, saw the Taser wires hit Mr. Nall, and saw him immediately drop to the ground. Mr. Nall landed on his back and appeared to involuntarily bring his hands up under his chin as the current ran through him. Officer Soto stood at Mr. Nall's feet. Officers tried to get Mr. Nall's hands behind his back and, according to Ms. Nall, were telling him to “quit resisting,” though it was apparent that his whole body was convulsing due to the Taser, and that he was not resisting. Ms. Nall described this application of the Taser as “so long ... [i]t felt like they were never letting up on it.” R. 34–1, PageID 682. Officer Matthew Collins entered the Nalls' apartment during this time and worked with Officer Hughes to handcuff Mr. Nall. Officer Soto tasered Mr. Nall again, this time using the Taser in drive stun mode—holding electrical contacts at the end of the device itself against Mr. Nall's body. The data file from Officer Soto's Taser shows that the first application of the Taser (through the probes attached to the wires) lasted 21 seconds and that the second application of the Taser (in drive stun mode) lasted 5 seconds. The officers were able to handcuff Mr. Nall soon afterwards.

As the officers were attempting to handcuff Mr. Nall, Ms. Nall was screaming and using profanity. She told them to get off of Mr. Nall and that they had no right to be in the apartment. During this time, one of the Nalls' other guests called 911 to report that police officers had burst into the apartment and used a Taser on Mr. Nall. She said Mr. Nall couldn't follow the officers' instructions to put his hands behind his back “because of the shock” and that “[f]oam was coming out of his mouth ... they shocked him so bad.” R. 39–15, PageID 1208–09.

After Mr. Nall was handcuffed, Officers Soto and Collins took him outside. Officer Hughes and another officer who had arrived on the scene, Officer Russell Tuttle, then arrested Ms. Nall for disorderly conduct. Mr. Nall was also charged with disorderly conduct.

Mr. Nall was unresponsive as the officers moved him out of the apartment, and Officer Collins heard a change in his breathing. Mr. Nall was drooling or foaming from the mouth, he had urinated on himself, and his eyes were open but he did not appear to be conscious. Officers Soto and Collins called for an ambulance and initiated efforts to revive him. Mr. Nall stopped breathing soon after the paramedics arrived, and went into full cardiac arrest at the scene. He was rushed to the hospital, where he remained for over two weeks. Hospital tests indicated that his blood alcohol level was 0.287 mg/100ml, which is markedly elevated.

As a result of his cardiac arrest and the lack of oxygen to his brain, Mr. Nall suffers from severe cognitive impairment that greatly affects his memory and executive functioning. He cannot remember what he has previously done in a day or what he has eaten, and needs reminders to perform most activities of daily living and self-care, including bathing and using the bathroom. He has forgotten significant life events, such as his wedding. His doctor has recommended constant supervision and support, and the Nalls have moved in with Ms. Nall's parents because Mr. Nall cannot be left alone.

The disorderly conduct charges against both Mr. Nall and Ms. Nall were dismissed based on the decision by a Painesville Municipal Court Judge that the Officers lacked exigent circumstances to enter the Nalls' apartment. The Officers contest the above version of facts in a number of respects, but for the purpose of appeal they have accepted the facts as taken in the light most favorable to the Nalls.

II. JURISDICTION AND STANDARD OF REVIEW

At the outset, the panel must determine whether it has jurisdiction to hear this appeal. A district court's denial of qualified immunity is an appealable final decision pursuant to 28 U.S.C. § 1291 only “to the extent that it turns on an issue of law.” Austin v. Redford Twp. Police Dept., 690 F.3d 490, 495 (6th Cir.2012). “Immediate appeal from the denial of summary judgment on a qualified immunity plea is available when the appeal presents a purely legal issue.” Ortiz v. Jordan, 562 U.S. 180, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011) (internal quotation marks omitted); accord Leary v. Livingston Cnty., 528 F.3d 438, 441 (6th Cir.2008) (noting the court's “jurisdiction does not extend to appeals that merely quibble with the district court's reading of the factual record, as opposed to appeals that challenge the legal premises of the district court's decision”).

Because the Officers present multiple purely legal issues for the court's consideration and recognize that the facts will be viewed in the light most favorable to the Nalls, we have jurisdiction over the Officers' appeal. This court “may exercise jurisdiction over the [Defendants'] appeal to the...