Johnson v. City of Youngstown

• Decision Date: 20 February 2014
• Docket Number: CASE NO. 4:11CV01635
• Court: U.S. District Court — Northern District of Ohio
• Parties: DESIREE JOHNSON, Plaintiff, v. CITY OF YOUNGSTOWN, OHIO, et al., Defendants.

DESIREE JOHNSON, Plaintiff, v. CITY OF YOUNGSTOWN, OHIO, et al., Defendants.

CASE NO. 4:11CV01635

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Date: February 20, 2014

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION &

ORDER [Resolving ECF No. 30]

Pending before the Court is the City of Youngstown and Chief of Police Jimmy Hughes's motion for partial summary judgment. ECF No. 30. Plaintiff filed an opposition brief; Defendants replied. ECF Nos. 34 and 36. For the reasons provided, the Court denies the motion for partial summary judgment.

I. Factual and Procedural Background

Plaintiff Desiree Johnson, mother and next friend of minor child "B.R.," filed this lawsuit against Defendants City of Youngstown, Chief of Police Jimmy Hughes, and Police Officers Kevin Mercer, Patrick Mulligan, and Malik Mostella. In her deposition, Plaintiff testified to the following facts. On July 10, 2009, B.R., a twelve-year old African-American boy, was playing basketball with friends on Kenmore Street in Youngstown. ECF No. 30-1 at 13; see ECF No. 8 at 4 and 8. From about twenty-five yards away, Plaintiff watched B.R. from her front porch. ECF No. 30-1 at 13. Plaintiff asked her daughter to go down the street and "get" B.R. because he had not cleaned his room as told. ECF No. 30-1 at 13. When B.R. continued to play basketball, Plaintiff gave him a"look." ECF No. 30-1 at 13. B.R. "came up running" and ran past Plaintiff toward the back of the house, where Plaintiff and her children normally entered and exited. ECF No. 30-1 at 13-14. At that time, two police cars pulled up. ECF No. 30-1 at 13. Officers Mercer and Mostella exited the vehicles, and ran up Plaintiff's driveway to her backyard with their weapons drawn. ECF No. 30-1 at 13, 15. A third police officer, Officer Mulligan, approached on foot from an open field beside the house. ECF No. 30-1 at 13-14. Plaintiff stayed where she was until Officer Mostella went back to her and ordered, "come get your dog." ECF No. 30-1 at 14. Plaintiff then proceeded to her backyard where she saw the three officers with B.R. ECF No. 30-1 at 14. Plaintiff's dog, Lucky, was sitting between B.R.'s legs. ECF No. 30-1 at 14. Plaintiff took control of the dog. ECF No. 30-1 at 14. Officer Mercer put B.R.'s arms behind his back and reached "down [B.R.'s] shorts, down his crack, to his groin." ECF No. 30-1 at 14. While Officer Mercer was searching B.R., Officer Mulligan pointed his gun "a couple inches" from B.R.'s face. ECF No. 30-1 at 15. Plaintiff screamed and asked the officers what they were doing. ECF No. 30-1 at 14. Officer Mostella waved his gun, ordered Plaintiff to calm down, and "[k]ept on saying that he was going to shoot." ECF No. 30-1 at 14-15. Officer Mulligan explained to Plaintiff that the officers "saw [B.R.] running." ECF No. 30-1 at 14. Lucky began barking when Officer Mercer started searching B.R., but the officers never pointed their guns at Lucky. ECF No. 30-1 at 16. The officers did not find drugs, weapons, or contraband, and did not arrest B.R. ECF No. 30-1 at 22; see ECF No. 8 at 6.

Count One of the amended complaint alleges that Officers Mercer, Mulligan, and Mostella, in their individual and official capacities as Youngstown police officers, used excessive and unreasonable force, and searched and seized B.R. without probable cause or justification, in violationof the Fourth and Fourteenth Amendments to the United States Constitution. ECF No. 8 at 7-8. Count Two alleges that B.R.'s constitutional injuries were caused by an established custom or policy within the Youngstown police department "that permits the use of excessive force and [the] searching, seizing, and detaining of young African-American males without the existence of probable cause or reasonable suspicion"; and that the City of Youngstown and Chief Hughes, in his official capacity as the Chief of the Youngstown police department, failed to train and supervise police officers. ECF No. 8 at 8-10. Count Three alleges a cause of action against Officers Mercer and Mulligan for intentional infliction of emotional distress. ECF No. 8 at 10-11. Plaintiff seeks damages, attorney's fees, and costs.

After Defendants filed an amended answer, the City of Youngstown and Chief Hughes (hereinafter collectively "the City")¹ moved for partial summary judgment with respect to Count Two of the amended complaint. The City claims that Plaintiff has presented no evidence that would entitle her to prevail on her Monell claim. ECF No. 30. Plaintiff filed an opposition brief and various exhibits; ECF Nos. 34 and 35; and the City filed a reply. ECF No. 36. The motion is ripe for the Court's adjudication.

II. Legal Standard

"Summary judgment is appropriate only 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 855 (6^th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). "'A genuine issue of material fact exists when there is sufficient evidence for a trier of fact to find for the nonmoving party.'" U.S. ex rel. Wall v. Circle C Construction, LLC, 697 F.3d 345, 351 (6^th Cir. 2012) (quoting Ciminillo v. Streicher, 434 F.3d 461, 464 (6^th Cir. 2006)). A court deciding a motion for summary judgment "must construe the evidence and draw all reasonable inferences in favor of the nonmoving party." Kuhn v. Washtenaw County, 709 F.3d 612, 620 (6^th Cir. 2013). "Where the moving party carries its initial burden, the nonmoving party 'may not rest upon its mere allegations or denials of the adverse party's pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.'" Ellington v. City of East Cleveland, 689 F.3d 549, 552 (6^th Cir. 2012) (quoting Moldowan v. City of Warren, 578 F.3d 351, 374 (6^th Cir. 2009)); see Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6^th Cir. 2012) ("a mere 'scintilla' of evidence in support of the nonmoving party's position is insufficient to defeat summary judgment").

III. Discussion

The City argues that it is entitled to partial summary judgment with respect to Count Two because Plaintiff cannot point to evidence that the City failed to train or supervise its police officers "in the avoidance of constitutional deprivations." ECF No. 30 at 6. More broadly, the City claims that Plaintiff has not presented evidence of a City policy that was the "moving force" behind the constitutional deprivations alleged. ECF No. 30 at 5. Therefore, the City contends, Plaintiff'sMonell claim must fail.² ECF No. 30 at 5. In response, Plaintiff asserts that a genuine issue of material fact exists. ECF No. 34 at 6. Plaintiff maintains that she has presented sufficient evidence to show that the Youngstown police department failed to conduct an adequate investigation into the incident involving her son, B.R. ECF No. 34 at 5-6. Furthermore, Plaintiff claims that the City failed to adequately investigate and discipline Officer Mercer regarding prior allegations of misconduct against minorities. ECF No. 34 at 6. According to Plaintiff, there is evidence for a jury to find that the City has adopted a custom of tolerating federal rights violations. ECF No. 34 at 6.

This lawsuit is brought under 42 U.S.C. § 1983.³ Section 1983 creates no substantive rights; rather, it provides remedies for deprivations of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). To prevail under the statute, a plaintiff must prove "(1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law." Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6^th Cir. 2006).

In Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court announced that municipalities may be held liableunder § 1983 if the injury was caused by an "official policy" or "custom" of the municipality. The reason for restricting municipal liability to injuries caused by a policy or custom was the Supreme Court's determination that Congress did not intend for § 1983 to impose respondeant superior liability upon municipalities for injuries inflicted solely by its employees or agents. Id. at 695. Therefore, "[t]hat a plaintiff has suffered a deprivation of federal rights at the hands of a municipal employee will not alone permit an inference of municipal culpability and causation; the plaintiff will simply have shown that the employee acted culpably." Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 406-407, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (emphasis in original). There must, rather, have been "deliberate conduct" by the municipality. Id. at 404.

A plaintiff can make a showing of an "illegal policy or custom" by demonstrating one of the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations. Burgess v. Fischer, 735 F.3d 462, 478 (6^th Cir. 2013).

Plaintiff does not present evidence of an official policy or legislative enactment, evidence that a final decision-maker ratified illegal acts, or evidence showing that the City failed to train or supervise its police officers (although the latter is alleged). Rather, Plaintiff proffers evidence purporting to show that the City repeatedly failed to adequately investigate federal rights violations or take appropriate disciplinary action. Plaintiff's proof relates to a "custom-of-tolerance" theory of § 1983 liability. See Burgess, 735 F.3d at 478 ("a custom-of-tolerance claim requires a showing that there was a pattern of inadequately investigating...